HKSAR v. SK HASNAINZZAMAN

CACC 301/2017

[2018] HKCA 374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 301 OF 2017

(ON APPEAL FROM HCCC NO 383 OF 2015)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant was sentenced to 10 years and 4 months’ imprisonment on 12 September 2017 by Campbell-Moffat J (“the judge”), following his plea of guilty on 17 February 2016 in the High Court to a single count of trafficking in a dangerous drug, namely 880.90 grammes of a powder containing 361.86 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant filed a Notice of application for leave to appeal (Form XI) on 22 September 2017, seeking leave to appeal against his sentence. He acts in person before us.

The facts

2.  At about 7:05 am on 27 May 2015, police officers intercepted the applicant, who was carrying a grey plastic bag, and another Indian male outside the Kowloon Shangri‑La Hotel, as they were walking along Mody Road in Tsim Sha Tsui.  Upon interception, the applicant threw the grey plastic bag away.

3.  The bag was recovered and 56 capsules of suspected cocaine wrapped in paper inside an envelope were discovered inside it.  The capsules were subsequently examined and found to be 880.90 grammes of powder containing 361.86 grammes of cocaine narcotic, with an estimated street value of HK$1,098,482.

4.  The applicant was arrested and cautioned for the offence of trafficking but remained silent.  In a subsequent video recorded interview (VRI), he claimed that:

(i)   He was unemployed and of no fixed place of abode;

(ii)   At about 7 am that day, he had met a black male in a 7‑11 convenience store in Tsim Sha Tsui, who asked him to go to the Kowloon Shangri‑La Hotel to collect something and bring it back to him for HK$1,000.  The black male then gave him a blue mobile telephone for contact purposes and a bunch of keys, without specifying the purpose;

(iii)   Accordingly, he went to the Kowloon Shangri‑La Hotel as requested, where he met another black male, who gave him the grey plastic bag.  He was told by this male that the first black male would contact him again to give him further instructions;

(iv)   He was intercepted by police officers shortly after collecting the grey plastic bag.

Mitigation

5.  Defence counsel in mitigation submitted that the applicant was the victim of entrapment; and that he had subsequently provided useful assistance to the police.  However, no follow‑up action had been taken by the police.  It was also submitted that the applicant was young and thus vulnerable to exploitation.

Reasons for sentence

6.  The judge pointed out that the applicant’s claim of entrapment was a bare assertion, which was not consistent with the accounts provided by the applicant.  She indicated that she would have to hear some evidence by way of a Newton hearing before being able to determine, on the balance of probabilities, that the applicant had been entrapped and whether it had any effect on sentence. In the event, the applicant did not avail himself of that opportunity and the judge did not accept the contention that he had been entrapped:

“That is because the evidence before me and the story you provided in interview and that which you provided at a later stage are inconsistent with your current contention that you would not have committed this offence save for the encouragement of others whose primary intention was to have you arrested. That is the element of importance if the suggestion of entrapment by third parties is to succeed.

In order to substantiate that contention so that there was some evidence before the court upon which the court could act, you were offered, but did not agree to, a Newton hearing…”[1]

7.  As to the further assertion that he had provided useful information by way of several non‑prejudicial statements (“NPS”), the judge reviewed six such statements provided by the applicant and pointed out that they were inconsistent with what the applicant had said during the VRI.  Furthermore, the applicant’s various NPS provided different and inconsistent versions of the story.

8.  Accordingly, the judge was not prepared to accept the applicant’s claims in any of his NPS.  She found:

“The suggestion that you somewhere, innocently, came to be in possession of the bag in your non-prejudicial statements is simply not true, just as the story you gave in interview was not true, and I doubt very much if your current version of events is true either.

…..

I do not believe a word of what you have suggested through counsel. I do not accept that you were wholly innocent. I do accept, as suggested by Mr McGowan, that you were hard up for money and tempted by the offer to earn money by trafficking in dangerous drugs. But I repeat, there is no evidence before the court of the participation of the man that you have referred to in these proceedings or of any untoward agreement with one of them and the police.”[2]

Later she said:

“You may have provided non-prejudicial statements to the authorities, but … I have little faith that they are true. I am not at all surprised that no action has been taken in furtherance of them and I frankly say that I would be surprised if any action was taken in the future.”[3]

9.  As to the background of the applicant, the judge noted that he was a Form 8 recognizance holder, aged 22, who had a clear record, having arrived in Hong Kong in June 2014.  After adopting a starting point of 14 years and 6 months’ imprisonment, the judge enhanced it by 1 year to 15 years and 6 months’ imprisonment, in light of the applicant’s non‑refoulement status at the time of his commission of the offence.

10.  The judge then gave the applicant a full one‑third discount for his timely plea of guilty but saw no reason to give any further discount.  Accordingly, the applicant was sentenced to 10 years and 4 months’ imprisonment.

Grounds of appeal

11.  The applicant contended that his sentence was manifestly excessive.  By letter of 25 April 2018 to the court, he maintained his contention that he was “set up”, and that he had provided assistance to the police.  He laid particular emphasis on the latter matter in submissions before us.  That caused us to adjourn the hearing until we were in possession of the material he had provided to the police, and which the judge had examined at a number of Sivan proceedings.

Respondent’s submissions

12.  Mr Pierre Lui, on behalf of the respondent, submitted that the judge was correct to find that the applicant’s claim of entrapment was no more than a bare assertion, the applicant having declined to explore the matter in evidence at a Newton enquiry; and that his purported information to the police was inconsistent and unbelievable.  Accordingly, the applicant was not entitled to any further discount on sentence.

13.  It was submitted that the starting point adopted was well within the permissible range under the guidelines, even though it was very slightly higher than a strict mathematical application of guidelines to quantity would have produced.

14.  As for the aggravating feature of the applicant being a Form 8 recognizance holder, Mr Lui submitted that the enhancement of 12 months’ imprisonment was already lenient.  He pointed out that, in HKSAR v Mahabul Alam Khan[4], judgment of which was delivered 4 days before sentence was passed in the present case, the applicant, who was also a Form 8 recognizance holder, had had his sentenced for trafficking in 238.57 grammes of cocaine narcotic enhanced by the Court of Appeal by 15 months’ imprisonment because of his non‑refoulement status at the time of commission of the offence.

Consideration

15.  We have no hesitation in rejecting the claim of entrapment, which was considered as far as the judge was able to consider it.  She had offered the applicant the opportunity to explore the question of entrapment at a Newton hearing.  However, the offer was not taken up by the applicant’s counsel.  As for the provision of information, we adjourned this matter, as we have indicated, so that we could examine certain Sivan proceedings which the judge had conducted.

16.  Having now read those proceedings and the material produced and referred to in them, we can see that the judge thoroughly and properly examined this matter, considered the content of the NPS and concluded that the information the applicant had provided in them was neither consistent nor credible.  Indeed, she said she had “little faith” that what he had said in the NPS was true, and “would be surprised” if any action were to be taken by the police on the basis of such information.

17.  It is now clear from our perusal of the papers and the Sivan proceedings that, far from them revealing inaction on the part of the police, no less than six NPS were taken from the applicant and two identification parades conducted before the matter was placed before the Department of Justice for its evaluation of the usefulness of the applicant’s information and assistance.  We have read, as did the judge, a comprehensive letter from Ms Lilly Wong, Senior Public Prosecutor, setting out the applicant’s information, before concluding that there were reservations about his credibility.  These reservations were all set out and explained by reference to the available material.  Ms Wong expressed the view that the applicant’s information had not amounted to useful assistance or led to any fruitful result.  We find no reason to disagree with the proper determination of the usefulness of the applicant’s information and assistance by the prosecuting authority.

18.  We do note one particular matter, which plainly went to the veracity of the applicant’s various accounts.  In the third of his NPS, the applicant was asked by the police about the inconsistencies between his account in the VRI on the one hand, and his subsequent version of events in his first and second NPS on the other.  The applicant explained that he had taken cocaine shortly before his arrest and was muddled in the account he put forward in his VRI.  However, the urine test conducted by the Correctional Services immediately upon his remand in prison custody following his arrest, proved negative for cocaine.  Furthermore, the prosecution carefully examined the recording of the applicant’s VRI, in which he did not appear to be confused or under the influence of dangerous drugs.

19.  As a result, it comes as no surprise to us, given the quality of the applicant’s assistance, that no prosecution has ever been initiated based on his information.  There is nothing in this complaint.

20.  We turn to the question of the enhancement for the applicant’s status as a Form 8 recognizance holder.  We are grateful to Mr Lui and those in the Department of Justice who have now helpfully provided us with a comprehensive list of all appellate court cases, both magistracy appeals and appeals to the Court of Appeal, as well as original District and High Court sentences which did not result in any appeal, since the case of HKSAR v Sandagdorj Altankhuyag & Another[5] was decided in August 2013.  The significance of that case and date is that it was the first articulation by this Court of the aggravating feature of a defendant’s immigration status where serious crimes were involved.  The principle has been followed since that time.

21.  The list provided by Mr Lui makes depressing reading.  It reveals that in almost 5 years since August 2013, there have been no less than 70 cases of Form 8 recognizance holders coming before the District Court, the High Court or the Court of Appeal charged with trafficking in dangerous drugs; although it may be noted that in four magistracy appeal cases, the appellants were sentenced for simple possession of dangerous drugs only. Care has been taken to ensure that if a case has come before the Court of Appeal, then it is not included in the list of cases at first instance, so as to ensure that there is no double counting of the case.  Although the list does not include those cases before the magistrates’ courts which have not resulted in any appeal, we are satisfied that the list is accurate and complete for present purposes[6].

22.  By any yardstick, this is an extraordinary set of statistics, which reveals a thriving underworld of drug trafficking amongst Form 8 recognizance holders, who are supposed to be awaiting their claims to refugee status, for which they are being permitted to remain at liberty on the streets of Hong Kong.  Such statistics ought to be of serious concern to any member of the community and to the Government of the HKSAR.

23.  What is even more alarming is that the courts are dealing with ever increasing quantities of dangerous drugs being trafficked by non‑refoulement applicants.  By quantity, we refer only to the narcotic content of the powder seized by the police.  The present case involves the trafficking in 361.86 grammes of cocaine narcotic worth HK$1,098,482.  Yet, in this month alone, this Court has dealt with four other Form 8 recognizance holders in separate cases trafficking in quantities of 121 grammes of cocaine narcotic worth HK$225,467[7]; 397 grammes of cocaine narcotic worth HK$951,938[8]; 442 grammes of cocaine narcotic worth HK$1,465,728[9]; and 475 grammes of cocaine narcotic worth HK$1,067,940[10]; whilst I have myself dealt, at a Single Judge leave application, with a case involving four Form 8 recognizance holders from the same West African country trafficking cocaine regularly on the streets of Central and Wanchai[11].  These are serious and very harmful types of dangerous drugs, in very substantial quantities, worth enormous amounts of money to people who apparently came to Hong Kong with very little.  It is obvious that there must be sophisticated syndicates at work in what is obviously a very lucrative trade.

24.  It is also clear from the statistics provided by Mr Lui that these quantities are by no means the largest being trafficked by Form 8 recognizance holders to have come before the courts in Hong Kong.  The High Court has dealt with several cases of Form 8 recognizance holders trafficking in more than 1 kilogramme of cocaine or heroin[12]; and two other cases of more than 5 kilogrammes of cocaine[13]. These cases, however, have not been the subject of appeal.

25.  Although there is some consistency in the approach to enhancements for Form 8 recognizance holders when such cases come before the Court of Appeal, there is still a degree of inconsistency when these cases are dealt with at first instance.  The time may be coming when this Court will have to issue guidelines in respect of this issue for the assistance of sentencing judges and magistrates.  For the present, however, we shall repeat what this Court said earlier this month in HKSAR v Ali Saif, at paragraph 17, concerning enhancements for Form 8 recognizance holders convicted of trafficking in dangerous drugs:

“… we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non‑refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

26.  Given the applicant’s status as a Form 8 recognizance holder, but accepting that the judge adopted a starting point slightly higher than the guidelines would have indicated on an arithmetical basis, the enhancement of sentence should in fact have been not less than 16 months’ imprisonment for this factor.  Since the sentence was less than it should have been, the applicant can have no cause for complaint.

27.  It was said on behalf of the applicant in mitigation that, at 22 years of age, he was young and vulnerable to exploitation. However, as the judge observed, that may be said of any trafficker from an impoverished country or background, who is put on an aeroplane to traffic drugs into Hong Kong.  It does not provide the applicant with any meaningful mitigation for a crime of this seriousness.

28.  The application for leave to appeal against sentence is refused and the appeal dismissed.