HKSAR v. KAYANI Hamid IIYAS

CACC 521/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 521 OF 2004

(ON APPEAL FROM HCCC 71 of 2004)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court):

Introduction

1.  On 27 May 2005, we dismissed the Applicant, Kayani Hamid Ilyas’s, application for leave to appeal against conviction and reserved our decision on his application for leave to appeal against sentence.  We now give our reasons for dismissing the application for leave to appeal against conviction and give our judgment on the application for leave to appeal against sentence.

2.  On 22 November 2004, the Applicant was convicted after trial in the Court of First Instance before Deputy Judge Wright and a jury of a count of conspiracy to traffic in a dangerous drug and a count of trafficking in 0.05 grammes of a mixture containing 0.04 grammes of heroin hydrochloride.  On the same day the judge sentenced the Applicant to 20 years’ imprisonment on first count and a concurrent sentence of 2 years’ imprisonment on the 2^nd count.   His co-accused, a man called Hussein Basharat (D2), who had pleaded guilty to both counts, was sentenced to 15 years & 4 months’ imprisonment on the first count and a concurrent sentence of 16 months’ imprisonment on the 2^nd count.  These sentences were arrived at after giving D2 a one-third discount from starting point sentences of 23 years and 24 months respectively. 

3.  The Applicant represented himself in his application for leave to appeal against conviction.  Mr. John Marray, who was his counsel at trial, represented him in his application for leave to appeal against sentence. 

Prosecution case

4.  The prosecution case came in the main from one man, Ani Augustine Chuddy (PW1) an undercover agent of the United States Drug Enforcement Agency working with the Hong Kong Customs and Excise Department.   PW1 was a Nigerian national whose task in Hong Kong was to make contact with persons in the Pakistani community believed to be involved in drug trafficking. PW1 was the sole oral witness for the prosecution.  He gave evidence under cover of an immunity from prosecution given by the Secretary for Justice.

5.  PW1 said that he came across D2 in early December 2002.  D2 had asked him if he was interested in purchasing hashish or heroin.  He expressed an interest.  D2 then introduced PW1 to two men, known to him only as Alex and Ricky, through whom he was able to make telephone contact with a man in the Mainland known as Habib.   Habib told him that heroin was available at the price of  $115,000 per kilogramme.  PW1 said he wanted to purchase between 1 to 5 kilogrammes and the amount he bought would depend on the quality and the price.  Later, PW1 told D2 about that discussion and also told him that the drugs were destined for the United States.

6.  Further negotiations with Habib took place in which Habib raised the price to $130,000 per kilogramme.   PW1 said he was interested in buying around 1 to 3 kilogrammes, and no more than 5 kilogrammes, of heroin.  That discussion took place within D2’s hearing.  Eventually, PW1 agreed with Habib to purchase 3 kilogrammes at $130,000 per kilogramme.  That was the amount referred to in all further negotiations.

7.  On 25 December 2002, D2 pointed the Applicant out to PW1 at the Star Ferry Pier.  He told PW1 that the Applicant knew Habib and could deal with him directly and thus cut out the intermediaries who had been involved in the negotiations up until then.  D2 introduced the Applicant to PW1.  D2 then spoke with the Applicant in their native language. The Applicant then patted PW1’s body to make sure that he was not wearing a recording device.

8.  The Applicant then made a telephone call to Habib and all three men, PW1, D2 and the Applicant, spoke with Habib over the phone.  Habib asked PW1 to go to the Mainland either with the Applicant or D2.  PW1 said he could not because he did not have a visa and neither did D2.  The telephone was passed back to the Applicant who said that he was prepared to go to the Mainland to meet Habib.

9.  After the phone call ended, PW1 asked the Applicant to bring back a sample of heroin with him from this meeting and gave him $1,500 as travelling expenses.  The Applicant went to the Mainland alone that night.

10.  Over the next few days there were a number of telephone conversations between the D2, PW1 and the Applicant, who was then in the Mainland.  In them the Applicant expressed his reservations about bringing the heroin sample back to Hong Kong alone.  He wanted D2 to accompany him.

11.  PW1 met the Applicant on 29 December 2002; he had by then returned to Hong Kong without a sample of heroin.  The Applicant was with a man whom the Applicant introduced as Habib.   The Applicant told PW1 that he was uncomfortable about bringing the sample back alone and that was why he had wanted D2 to accompany him.  He also wanted to introduce D2 to Habib.  The three of them then met D2.  D2, Habib and the Applicant conversed in their own language.  D2 then said he would obtain a visa the next day and go to the Mainland to meet Habib and bring back the sample.  Later PW1 gave D2 money for him to obtain the visa.

12.  On 3 January 2003, PW1, who had a recording device on him, met D2.  D2 telephoned the Applicant in his presence and told the Applicant that they were to go to the Mainland to fetch and return with a sample of drugs.  

13.  Later that day, PW1 and D2 met the Applicant in Wanchai and D2 and the Applicant left for the Mainland in the afternoon.  They returned to Hong Kong around midnight.  PW1 met them at the KCRC station and they all went to a MacDonald’s restaurant in Tsim Sha Tsui by taxi.   After getting out of the taxi, but before entering the restaurant, D2 handed PW1 a small quantity of heroin and said it was “direct from the boss”.  This formed the subject of the 2^nd count.  D2 also told PW1 he had the boss’ phone number and that PW1 could call him the next day.  He gave him a piece of paper on which there were a telephone number and an email address.  The Applicant was at that time walking ahead of PW1, while D2 was walking behind him.

14.  Once in the restaurant, PW1 asked D2 and the Applicant whether they had been given a price for the heroin they intended to purchase.  There appears to have been no direct reply to this question.  He also said that he would test the sample. Before the three of them parted company, the Applicant asked D2 whether he had “given it”. PW1 answered, saying, “He gave it to me already. Tomorrow we sit down and discuss.” The Applicant said to him, “You like this? You try this one. If you like it, then you can tell us.”  That conversation was recorded on the recording device PW1 had with him.  That meeting was the last occasion the Applicant met PW1.

15.  After D2 and PW1 had parted company with the Applicant, D2 told PW1 that the sample had come from a man named Khan and not from Habib, and it was Khan’s phone number and email address on the paper he had given him earlier.  D2 went on to say that Khan wanted to deliver the 3 kilogrammes of heroin in separate lots.

16.  PW1 met D2 in the late evening of 4 January 2003.  D2 had deliberately excluded the Applicant from this meeting as he planned to cut the Applicant out of the deal.

17.  On 5 January 2003, the Applicant made a number of telephone calls to PW1 enquiring about the proposed deal and whether PW1 had called Khan, and what had happened with the sample.  The Applicant said that he wanted to meet PW1 with or without D2 being present.  He also asked PW1 for money.

18.  There were subsequent contacts between PW1, and D2 and Khan concerning the delivery of 3 kilograms of heroin to Hong Kong. Eventually, the deal fell through due to Khan’s insistence that delivery should take place in the Mainland and PW1’s refusal to go there. The Applicant was not involved in these discussions.

Defence case

19.  The Applicant gave evidence in his own defence at trial.  In brief, he said he had not entered into any agreement with D2 and PW1 to import heroin into Hong Kong.  He admitted pretending that he had the necessary contacts, but this was just a joke, which he and others, including D2, had played on PW1, (whom he knew as ‘Steve’), in order to get him to supply them with beer and cigarettes and small amounts of cash.  Habib had been presented to PW1 as a Mainland drugs supplier on 29 December 2002 as part of this joke.

20.  The Applicant admitted that he had been to the Mainland twice, the first time by himself in late December 2002 and the second time together with D2 on 3 January 2003.  It was his evidence in respect of the first trip that PW1 had given him $1,500 simply to go to the Mainland and await D2’s arrival, and not to obtain a sample of heroin.

21.  The Applicant said that before making this trip he had told D2 that they should stop pretending to PW1 that they could obtain drugs.  D2 had rejected this, saying that, as PW1 had given him $1,500, paid for his visa and bought them beer every day, if they told him that they were only pretending there would be no more money coming to them.

22.  The Applicant admitted that D2 and he had met both Habib and Khan in the Mainland on 3 January 2003.  He claimed that he had not discussed the question of their supplying drugs with either of them.  In fact there had been no mention of drugs in the course of their conversations.  He went on to say that as D2 and he were in the immigration departure hall as they were about to leave the Mainland, he had seen Khan pass something to D2 and say to him words to the effect of, “You give this to the black man and let me know.”   He had asked D2 if it was a sample of drugs.  D2 had said no, it was something private between Khan and himself.  The Applicant had then asked Khan if he had given drugs to D2.  Khan did not reply, but D2 had said no, it was nothing to do with that and again assured him that it was not drugs. 

23.  The Applicant’s explanation for the taped conversation between PW1, D2 and himself in the MacDonald’s restaurant after their return from the Mainland was that he believed D2 had given PW1 sugar and not drugs.

Appeal against conviction

24.  We take the appeal against conviction first.  In his ‘home-made’ grounds of appeal, the Applicant makes various complaints to the effect that the Judge failed to raise matters that were in his favour with the jury and was biased against him.  He also complains that the Judge failed to exclude PW1’s evidence because he was an agent provocateur and then misdirected the jury on the law relating to trafficking in dangerous drugs.

Decision

24.  There is nothing in these complaints.  There was no reason for the Judge to exclude PW1’s evidence, his role in the conspiracy was apparent to the jury.  The judge’s summing-up was correct in all relevant matters of law; it was also well balanced and fair.  The Applicant’s case was put to the jury for their consideration.  It is obvious from their verdict that they rejected it.  We found nothing in the summing up that could give rise to cause for complaint and dismissed the application for leave to appeal against conviction.

Appeal against sentence

25.  In advancing his argument in support of the application for leave to appeal against sentence, although Mr. Marray (following R v. Lau Tak Ming [1990] 2HKLR 370) accepted that sentences in the region of 20 years’ imprisonment are appropriate for those who involve themselves in any way in trafficking or conspiring to traffic in the quantities of heroin involved in this case, argued that the sentence of 20 years’ imprisonment passed on the Applicant for the first count is manifestly excessive when one looks at the limited role he played in furtherance of the conspiracy. 

26.  Mr. Marray argued that the Applicant’s role was limited to making further contacts with the drug suppliers in the Mainland and assisting D2 in bringing the heroin sample back to Hong Kong on the evening of 3 January 2003.  That the Applicant was not an enthusiastic participant in the conspiracy may be seen from the fact that when in the Mainland in late December 2002 he was apprehensive about bringing a sample of heroin back to Hong Kong and returned empty-handed.  And once a sample was in Hong Kong and delivered to PW1, the Applicant played no further role in the conspiracy.  Indeed the evidence is that at that stage D2 sought to cut the Applicant out of the deal.  Further, the only monetary reward the Applicant received was $1,500, which PW1 paid him for travelling expenses. 

27.  The Judge was aware of the matters Mr. Marray relies on and took them into account, saying this:

“There does seem to me to be a distinction between the roles that you played.  Each of you was willing, even eager to participate in the conspiracy.  Each of you was quite content to enable the conspiracy to flourish and no doubt, would have been more than ready to participate in any profit that might come your way.  That said, I am satisfied that you, 1st accused, played a somewhat less active role throughout than did the 2nd accused.

The 2nd accused, you described yourself to the undercover agent when you approached him, according to the Summary of Facts which you agreed, as a “broker of drugs.” You then actively introduced him to various people, including the 1st accused, with a view to putting the deal together.  You encouraged the 1st accused when he displayed hesitation about carrying the sample and you went so far as to agree to bring back some, if not all, of the shipment to Hong Kong.

1st accused, you did not show quite the same level of enthusiasm for the venture as did the 2nd accused.  Even the undercover agent accepted in his evidence-in-chief that you had expressed hesitation about carrying the sample back from the mainland, saying that you wished to be accompanied by the 2nd accused.

It certainly appeared from his evidence overall that you were somewhat less active to an extent than was the 2nd accused.  Even if the evidence was that you would be cut out of the final deal, you were not aware of your co-accused’s attention.

Your differing roles in the conspiracy should be reflected by a difference in starting points. 2nd accused, your involvement being the greater, in your case I adopt a starting point of 23 years’ imprisonment. 1st accused, in my judgment, the appropriate starting point in your case is one of 20 years’ imprisonment.  These are the starting points that I adopt in respect of the 1st count.

In respect of the 2nd count, I adopt a starting point of 24 months’ imprisonment.”

28.  The truth of the matter, as we see it, is that although the Applicant may have been apprehensive about what he engaged himself to do, he nevertheless participated in the conspiracy.  He went to the Mainland twice in furtherance of it.  While in the Mainland he appears to have been actively involved in contacting drug suppliers operating there.  This indicates that he had contacts there who were actively engaged in the drug trade.  He was aware that the small quantity of heroin that D2 and he brought back to Hong Kong for PW1 was a sample in respect of a larger proposed shipment of heroin intended for illegal export to the United States, which adds an aggravating international element to his offences.  After the sample had been given to PW1, he remained in telephone contact with PW1 and asked him for money. 

29.  There were, however, two matters about the Applicant’s involvement in the conspiracy that concerned us.  The first is that when compared to D2’s the Applicant’s role in it was, undoubtedly, a limited one.  The Judge briefly adverted to this in his sentencing remarks.  The Applicant was only brought in because he knew Habib and could cut out the two intermediaries, Alex and Ricky.  Because of his own fears, he was unable to bring a sample of heroin back to Hong Kong when he went there alone in late December 2002, and once a sample had been obtained D2 chose to cut him out of the deal.  That was perhaps not surprising as, on any view of the evidence, the Applicant had conducted himself in a most amateurish fashion throughout his involvement in the conspiracy and must have been an obvious threat to its chances of success. 

30.  The second matter (though it was not matter dealt with by Mr. Marray until we raised it) is that there appears to have been no evidence that the Applicant was aware of the quantity of heroin that the Mainland supplier was to supply.  The telephone discussion between PW1 and Habib, in which PW1 said that the amount required was between 1 to 3 kilogrammes, and in any event not more that 5 kilogrammes and which took place within D2’s hearing, was before the Applicant joined in the conspiracy on 25 December 2002.  The discussion between PW1 and D2 after D2 and the Applicant had returned from the Mainland in the evening of 3 January 2003 and handed over the sample to PW1 at the MacDonald’s restaurant in Tsim Sha Tsui, in which D2 informed PW1 that a man named Khan and not Habib was to be the supplier and would supply 3 kilogrammes, took place after the Applicant had parted company with D2 and PW1.  There was no evidence that in the discussions in the Mainland between D2, Khan and the Applicant a quantity as high as 3 kilogrammes of heroin had been mentioned.  Both Mr. Marray and Mr. William Tam, for the Respondent, confirmed that was the case.

31.  We note from his sentencing remarks that, although the Judge was careful to satisfy himself that D2 was aware of the quantity of heroin involved in the conspiracy, he does not seem to have satisfied himself that the Applicant was as equally aware of that quantity.

32.  Although it must be the case that the Applicant was aware that a substantial quantity of heroin was the subject matter of the conspiracy, given that he made two trips to the Mainland to arrange the supply of heroin with his contacts there and was aware that the small quantity of heroin D2 and he brought back from the Mainland for PW1 was the sample in respect of a larger quantity of heroin intended to be brought to Hong Kong from the Mainland, we do not believe that it can be said with confidence that he was aware that the quantity involved was as high as 3 kilogrammes.

33.  We consider, therefore, that although there can be no doubt that the Applicant was aware that he was involved in a conspiracy to traffic in a substantial quantity of heroin, it would be unsafe for us to proceed on the basis that he was aware that the quantity was as high as 3 kilogrammes. 

34.  This leads to a difficulty in deciding on what basis the Applicant should have been sentenced.  Doing the best that we can, we believe that the judge should have proceeded on the basis that the Applicant must have been aware that the quantity of heroin involved was a high one, though not necessarily so high as to bring his offence within either the ‘very large quantity’ category of over 600 grammes of narcotic identified in Lau Tak Ming as deserving a sentence of 20 years or more imprisonment, or the fifth sentencing band of between 400 grammes to 600 grammes identified in the same case as deserving a sentence of between 15 to 20 years’ imprisonment.  In our opinion the Applicant’s sentence for the conspiracy count could properly have been arrived at by reference to the Lau Tak Ming sentencing band of between 200 to 400 grammes, which attracts a sentence in the range of 12 to 15 years’ imprisonment.  Taking into account his lesser role in the conspiracy when compared to D2’s, and the fact that on any view the Applicant could not have played an active role in the trafficking itself, it is our opinion that his sentence on the first count should have been at the lowest end of that band, namely 12 years’ imprisonment.

Decision

35. We therefore grant the Applicant leave to appeal and, treating this hearing as the hearing of the appeal itself, quash the Applicant’s 20 year sentence on the first count and in pursuance of our powers under section 83I(3) of the Criminal Procedure Ordinance pass upon him a sentence of 12 years’ imprisonment.  His sentence on the second count and the Judge’s order that he serve both sentences concurrently remains unchanged.