HKSAR v. HASHIMI HABIB HALIM

CACC526/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 526 OF 2001

(On appeal from HCCC 103 OF 2001)

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J U D G M E N T

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Jackson J (giving the judgment of the Court) :

1. The applicant pleaded guilty upon his arraignment on 7 November 2001 before Beeson J to three offences of administering a stupefying or overpowering drug with intent to commit an indictable offence, contrary to section 21 of the offences against the Person Ordinance (Chapter 212), and to three offences of theft, contrary to section 9 of the Theft Ordinance (Chapter 210).

2. He pleaded not guilty to five further counts on the indictment (four of which related to obtaining property by deception and one of which related to an attempt to do so) and those counts were ordered to "lie on the file".

3. On 9 November 2001, the applicant was sentenced to concurrent terms of eight years' imprisonment in respect of each of the "administering" offences and four years' imprisonment in respect of each of the "theft" offences, so that he is currently serving a total of eight years.

4. The facts of the offences to which the applicant had pleaded guilty and which facts he admitted can be stated as follows :

Counts 1 and 2 -

On 26 October 2000, a Japanese tourist came to Hong Kong and he checked into the accommodation in Chungking Mansions in Nathan Road. On 28 October 2000, he met the applicant there. They agreed to play a game of chess. The applicant left and returned shortly afterwards with a chess set and three cartons of apple juice. They played chess and whilst doing so, the applicant drank one carton of the juice himself and gave one to the tourist to drink. Later the applicant gave the tourist another carton which he also drank. After a while, the tourist felt unwell and dizzy and he lost consciousness. He was treated at hospital. After his discharge from hospital the tourist returned to his accommodation and found that much of his property (including cash, travel documents, a camera and a watch) was missing. He subsequently identified some of that property which the police had found in the applicant's possession.

Counts 3 and 4 -

Also on 26 October 2000, a Korean businessman arrived in Hong Kong to purchase computer parts for-resale in Korea. He was also staying in accommodation in Chungking Mansion. At about 10 a.m., on 28 October 2000, the businessman met the applicant in the lobby and the applicant offered to assist him with his proposed purchase. Later that evening, the applicant went to visit the businessman in his room taking with him two cartons of apple juice, one of which he gave to the businessman to drink. After drinking it, he became dizzy and then unconscious.

He was treated at hospital and kept under observation for 24 hours. Upon his discharge from hospital he too returned to his accommodation and he discovered that many of his general items (including his travel document, his clothing and his coat) were missing. All of the items save one were found by the police in the applicant's possession.

Counts 5 and 6 -

Again in October 2000, there was another gentleman from overseas staying in the accommodation in Chungking Mansions. He was a dealer in stones and crystals and, on 24 October 2000, he met the applicant who told him that he was interested in purchasing some stones and/or crystals. On 28 October 2000, the applicant went to this victim's room and said that he wished to buy all of his stock of stones and crystals. He then left, returning shortly thereafter with three cartons of apple juice, one of which the victim drank before feeling faint and losing consciousness. After he was discharged from hospital and had returned to his accommodation, he discovered that all of his stones and crystals (which he valued in excess of US$90,000) were missing. None were recovered.

5. The following additional facts were also admitted by the applicant :

(a) at about 11 a.m., on 29 October 2000, he was arrested and was found to be in possession of numerous items subsequently identified by the two victims of Counts 1, 2, 3 and 4 as belonging to them;

(b) each of the three victims identified him as being the person who had provided the cartons of apple juice;

(c) blood samples taken from each of the victims showed the presence of lorazepam which is a controlled drug, the use of which can result in sedation, dizziness and muscle weakness; and

(d) 32 tablets, a syringe and a bottle of liquid found in the appellant's possession at the time of his arrest were found to contain varying quantities of lorazapam.

6. When she came to sentence the applicant, the learned judge said - inter alia - this :

"The defendant pleaded guilty on 7 November this year to 3 counts of administering a stupefying or overpowering drug with intent to committing an indictable offence .... The maximum penalty for this offence is life imprisonment. The defendant also pleaded guilty to 3 counts of theft contrary to section 9 of the Theft Ordinance, the maximum penalty for such an offence on indictment is 10 years. ....

These are very serious offences, as evidenced by the heavy maximum penalty. I find that the offences were systematic and planned. Each victim was targeted, presumably after the defendant had satisfied himself of their likely worth. The defendant, in embarking on this scheme, showed a callous disregard for the possible deleterious effects of the Lorazepam on men who were strangers to him.

Although, fortunately, none of the victims suffered any lasting ill effects, the defendant could not have known, for instance, whether one or all of his victims suffered a medical condition that could have been exacerbated by ingesting the Lorazepam, nor was he aware whether any of his victims might be taking other medication which might react dangerously with the Lorazepam.

In considering the starting point for sentence I have taken into account the fact that deterrence is an important factor in sentences of this nature. ....

The only mitigating factor in this case is the defendant's pleas of guilty, although, as they were offered only on the morning the trial was due to start, I do not consider that they are early pleas. I note, too, that the usual mitigation, that of saving time and expense, does not apply in full here. The time of the trial was certainly been saved; however two of the three main witnesses had to be flown from Japan and Korea to give evidence and because the pleas were advised so late, it was too late to stop the witnesses travelling to Hong Kong, and thus a major cost of the trial was not avoided.

For that reason I am not prepared to give the defendant the full one third discount for plea, and instead I give a discount of 20 per cent."

7. The learned judge adopted what she described as a "global" starting point in sentence of 10 years' imprisonment in respect of the Cap.212 offences and of five years' imprisonment in respect of the Cap.210 offences.

8. On 15 November 2001, the applicant lodged an appeal against his sentence claiming that it was manifestly excessive. He now seeks leave to appeal not only against his sentence but, despite his pleas, also against his conviction out of time. In respect of the former, he is represented before us by Mr Hoosen who is instructed by the Director of Legal Aid and, in respect of the latter, the applicant appears in person, his application for legal aid to pursue that matter having been refused.

9. It is the more convenient for us to deal firstly with the application for leave to appeal against conviction.

The appeal against conviction

10. In a statement of 20 February 2002, the applicant indicated his intention to appeal against his conviction. In that statement he alleges that he was "misled" by his counsel into pleading guilty. In a "declaration" dated 8 March 2002, the applicant says that he was also induced into pleading guilty as a result of the intense pressure of the courtroom.

11. By affirmation dated 26 March 2002 in response to an invitation by this court, Mr Callaghan (who was counsel for the applicant at trial) stated, in no uncertain terms, that he had explained to the applicant his rights - and had given to him full advice - concerning his pleas upon arraignment as a consequence of which the applicant had seen fit to sign a document confirming the receipt of that advice and his decision concerning his pleas of guilty.

12. Mr Callaghan went further by saying that the applicant had been under no intimidation or pressure as regards his decision concerning his pleas. On 6 May 2002, Mr Callaghan, having been advised by the Registrar of the Court of further representations by the applicant, said that in the light of his affirmation of 26 March 2002 he did not intend to "further indulge [the] applicant with a response to his latest series of misrepresentations".

13. We have before us, and we have read, page after page of submissions from the applicant which, inter alia, take issue with the decisions of the Director of Legal Aid; which suggest that the applicant was misled by both his solicitor and his counsel; which suggest that his pleas of guilty were inconsistent with the mitigation advanced on his behalf; which appear to suggest that the indictment which he faced was in some way duplicitous; and which suggest that the proceedings against him amounted to an abuse of process.

14. We do not propose to recite here the detail of those submissions. Suffice it to say that in our judgment each and everyone of them is entirely without foundation and has doubtless been crafted out of desperation. We reject the allegations made against Mr Callaghan, an experienced counsel with a reputation for probity, hard work and thoroughness, as we do those now advanced by the applicant against those instructing Mr Callaghan; the police officers in this case, counsel for the prosecution at trial and - so it would appear - almost everybody else concerned in the proceedings.

15. We have no hesitation whatsoever in refusing the applicant leave to appeal against his convictions out of time which resulted from what we view as his unequivocal pleas based on sound advice.

Appeal against sentence

16. Mr Hoosen's grounds of appeal are, expressed concisely, as follows :

(a) the starting point in sentence in respect of counts 1, 3 and 5 adopted by the trial judge was too high and the resulting sentences (albeit to be served concurrently) were manifestly excessive; and

(b) whatever the appropriate starting point may have been one-third should have been discounted by virtue of the applicant's pleas of guilty upon arraignment.

17. Inter alia what Mr Hoosen has to say about those matters is this :

"(1) ... There is no tariff sentence for this type of offence, and it is accepted that every case must be judged on its own facts. ... It would seem the intent in the present case was not to cause the victims any harm - and there was no evidence of any physical injury - but simply to bring the victims to a state of sleepiness, so as to facilitate the theft of their property. All the 3 offences occurred during one day, and there is no suggestion that this was a scheme that was intended to last longer than that, or there were any aggravating features in this case. The court ought also to have given more weight to the circumstances leading up to the commission of these offences, namely that the Appellant himself had got cheated, and acted out of character in the desperation of the moment. The Appellant had not come to Hong Kong with the outright intention to commit offences in Hong Kong.

(2) It is submitted that in all the circumstances of present case the totality of 8 years' imprisonment in the present case is manifestly excessive. ...

(3) The trial judge also erred in not giving the usual one-third discount on the guilty pleas, which were offered on the first day of trial. In HKSAR v. Chu Shi Keung [2000] 1 HKC 576 it was said :

There are sometimes reasons for not giving a full discount on a plea of guilty, such as a failure to enter a timely plea where, for example, the defendant has unsuccessfully contested a voire dire and has only then pleaded guilty, or in some cases where he has absconded on bail. This is not intended as an exhaustive list of situations where, following a plea of guilty, a failure to accord the full discount or in extremely rare cases, any discount of all, will be applicable.

And :

Counsel must know how to advise there clients when they are minded to plead guilty and, if a wide discretion is given ... to judges in deciding whether or not to give a full discount for plea, counsel will understandably be unable to give sensible advice and defendants will be left with a justifiable grievance if the discount they expected to receive was not in the event given to them.

(4) The policy of giving the usual discount is well entrenched. A plea of guilty offered on the first day of trial ought not to be described as an untimely plea. ... It is submitted that the trial judge's reduction of the discount on the basis that two witnesses had to be arranged to be flown to Hong Kong, is wrong in principle. And in any event, the reduction of the discount of 20% was too much."

18. In support of his contention that the starting point in sentence adopted by the learned judge was excessive, Mr Hoosen has cited two authorities which, with respect, we find to be of no assistance to us as the facts of those cases bear little resemblance to those in the case before us.

19. In his submission regarding the starting point adopted, Mr Wong for the respondent says (inter alia) this :

"The trial Judge was correct in identifying the need for deterrence.

It is submitted that especially given the repeated and systematic nature of the offences, ten years was not at all an excessive starting point. The Respondent goes further and submits that it was clearly open for the trial Judge to have adopted a starting point which was higher than ten years."

20. We are inclined to agree with that submission, given the reasons recited by the learned judge for the sentences which she imposed. Had she adopted another approach, it seems to us that she would have been equally justified in adopting a somewhat lesser starting point in respect of each of the Cap.212 offences but (because of the fact of repetition of the offences) ordered that those sentences be served at least in part consecutively to arrive at precisely the same starting point of 10 years' imprisonment.

21. In any event we are not disposed to interfere with the "global" starting point of 10 years adopted in this case which in our judgment cannot be criticised.

22. We turn finally to the question of the discount given for the pleas of guilty and are bound to say that, at least on the face of it, Mr Hoosen appears to have had some of the ground taken away from under his feet by the applicant's grounds in his appeal against conviction suggesting that he (the applicant) never wanted to plead guilty in the first place.

23. Mr Wong has referred us to that part of the judgment in HKSAR v. Lo Chi-yip [2000] 3 HKLRD which appears at p.276E as follows :

"The other ground for justifying a reduced discount was said to be the late plea entered on 'the very first day of the trial'. In some circumstances, that might have been a justification for slightly reducing the discount although we do not seek to encourage that view. This will depend entirely on all the circumstances of individual cases, particularly when considering whether a plea at court on the first day of trial has been a technical manoeuvre resulting in frightened or reluctant witnesses being forced to come to court, or resulting in a prolongation of an investigation that could have been curtailed far earlier if a plea had been indicated at the first opportunity. These are examples and by no means do they provide an exhaustive list."

24. Mr Wong goes on from there to suggest that what in fact happened in the present case could properly be described as a "technical manoeuvre" in that the applicant may well have been (and of course Mr Wong cannot put it any higher than that) delaying his plea in the hope that one or more of the witnesses due to fly into Hong Kong from overseas to give evidence against him might fail to appear.

25. Whether that was in fact the case or not, the pleas upon arraignment were too late to avoid the necessity of the attendance of the witnesses from overseas and in our judgment that circumstance (which was entirely foreseeable) wholly justified the learned judge taking the course that she did take in reducing the discount which would have been attracted to a timely plea.

26. For all of these reasons, the application for leave to appeal against sentence is dismissed.