HKSAR v. BUTT MUHAMMAD GULZAR

CACC 205/2019

[2020] HKCA 191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 205 OF 2019

(ON APPEAL FROM DCCC 74 OF 2019)

------------------------

------------------------

__________________________

REASONS FOR JUDGMENT

__________________________

1.  The applicant appeared before District Judge Clement Lee (“the judge”) and was convicted on his own plea of four counts of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 27 June 2019, the judge sentenced the applicant to a total term of 48 months’ imprisonment.

2.  The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his sentence.

3.  At the hearing of the application I granted the applicant leave and said I would hand down my reasons for doing so in due course. These are my reasons.

The Summary of Facts

4.  The Summary of Facts that the applicant admitted for the purpose of his sentencing revealed that on four occasions he sold dangerous drugs to two police undercover officers (PW1 and PW2) separately conducting controlled purchases. The four occasions were:

(i)     on 7 September 2018, at Ground Floor, Sheraton Hong Kong Hotel & Towers, Nathan Road, Tsim Sha Tsui when PW1 paid the applicant HK$1,000 for the purchase of a bag of 6.39 grammes of herbal cannabis (Charge 1);

(ii)    on 30 September 2018, at Ground Floor, Sheraton Hong Kong Hotel & Towers, when PW1 paid the applicant HK$1,200 for the purchase of a bag of 0.39 gramme of cocaine in powder form (Charge 2);

(iii)   on 2 October 2018, outside a jewellery store on Carnarvon Road, Tsim Sha Tsui when PW2 paid the applicant HK$1,200 for the purchase of a bag of 0.44 gramme of cocaine in powder form (Charge 3); and

(iv)    on 3 October 2018, at Ground Floor, Sheraton Hong Kong Hotel & Towers, when PW1 paid the applicant HK$3,000 for the purchase of 3 bags containing a total of 1.32 grammes of cocaine in powder form (Charge 4).

5.  Shortly after the fourth purchase was completed, the applicant was arrested and under caution he said he had obtained all the drugs that he had sold from his friend.  When he was searched the police found on his person two mobile phones and HK$3,070 in his purse.  

6.  In total there were 6.39 grammes of herbal cannabis and 2.15 grammes of cocaine narcotic involved, with an aggregate street value of HK$6,267.

The mitigation

7.  At his sentencing hearing the applicant was represented by Mr John Marray who relied heavily on a written mitigation submission which he had tendered to the judge.  In this submission Mr Marray referred the judge to a judgment of the Court of Appeal in Attorney General v To Ka Yin[1]. In this case the Court of Appeal was dealing with six purchases of dangerous drugs by police officers who were posing as addicts.  The drugs were of small quantities of narcotic to which the tariff in R v Lau Tak Ming[2] applied.  The Court of Appeal said that by application of the principles set out in Lau Tak Ming the starting point for each offence should have been two years’ imprisonment after which the totality principle would be engaged.  The court said a final starting point of three years would have been appropriate and this would then have to be discounted by one-third for the plea of guilty, resulting in a final sentence of 2 years’ imprisonment.  Mr Marray urged the judge to sentence the applicant similarly. 

8.  In his oral submission Mr Marray emphasised to the judge that “the key issue in this case is the totality, is how much should be concurrent, how much should be consecutive.”[3]

The judge’s Reasons for Sentence

9.  In determining the appropriate sentence, the judge directed himself in accordance with the Court of Appeal’s judgments in Lau Tak Ming and HKSAR v Abdallah Anwar Abbas[4] which stipulate that the starting point for a quantity of heroin and cocaine narcotic up to 10 grammes is between 2 and 5 years’ imprisonment.  He also referred to Attorney General v Chan Chi Man[5]as laying down a guideline starting point after trial of up to 16 months’ imprisonment for under 2,000 grammes of cannabis resin.  However, as herbal cannabis is four times less potent than cannabis resin he reduced the 16 months guideline to 4 months.  This was in accordance with decisions of the Court of Appeal in Attorney General v Tuen Shui Ming & Anor[6]and HKSAR v Chor Lui[7]. 

10.  In respect of Charge 1, the judge adopted 3 months’ imprisonment as the starting point, which he enhanced by 2 months as the applicant was a Form 8 holder.  After a full one-third discount was given for his guilty plea, the resulting sentence was 3 months and 10 days’ imprisonment. 

11.  In respect of Charge 2, the judge adopted 24 months’ imprisonment as the starting point, which he enhanced by 3 months for the applicant being a Form 8 holder and because he had committed the second offence within a short period of time.  Upon a full one-third discount, the resulting sentence was 18 months’ imprisonment.

12.  In respect of Charge 3, the judge adopted 24 months’ imprisonment as the starting point, which he enhanced by 3 months for the applicant being a Form 8 holder and because he had committed the third offence within a short period time.  After a full one-third discount was given for his guilty plea, the resulting sentence was 18 months’ imprisonment. 

13.  Finally, in respect of Charge 4, the judge adopted 24 months’ imprisonment as the starting point, which he enhanced by 3 months for the applicant being a Form 8 holder and because he had committed the fourth offence within a short period of time.  After a full one-third discount was given for his guilty plea, the resulting sentence was 18 months’ imprisonment. 

14.  On the issue of totality, the judge did not refer to the case of To Ka Yin on which Mr Marray had relied, but explained in his Reasons for Sentence how he had determined what would be an appropriate totality:

“16.   Had I ordered all sentences to run consecutively, that would have attracted a total of 57 months and 10 days’ imprisonment, which seems to be excessive. Had I treated the total narcotic content involved in this case as if it is a single charge, that would have attracted a total of about 36 months’ imprisonment, but that would akin to ignore the fact of separate charges and repeated offence within a short period of time.  The overall criminality with involvement of undercover police officers and repeated offence in this case should arrive at 44 months’ imprisonment.”

15.  The judge, immediately thereafter, sentenced the applicant, saying:

“As such, the defendant is convicted and sentenced as follows:-

Charge 1 – 3 months and 10 days’ imprisonment, concurrent with Charge 2;

Charge 2 – 18 months’ imprisonment, consecutive to Charge 3;

Charge 3 – 18 months’ imprisonment; and

Charge 4 – 18 months’ imprisonment, with 6 months concurrent to Charge 3 (or 12 months consecutive to Charge 3).

The total sentence to be served by the defendant is 48 months or 4 years imprisonment.”

The applicant’s grounds of appeal

16.  Mr Phillip Ross, counsel for the applicant, relied on four grounds of appeal.  Firstly, he said the judge erred at [16] of the Reasons for Sentence when he identified the lower limit of the starting point for the total quantity of narcotic involved.  At [16] the judge was trying to determine an appropriate totality and for this purpose identified a range whose upper parameter of 57 months and 10 days was created by simply adding all the sentences together and whose lower parameter of 36 months was created by adding all the drugs together as though they were the subject of only one offence. The complaint in this first ground of appeal is that the upper parameter of 57 months and 10 days was a figure that had already been discounted by one-third for the applicant’s plea of guilty, but the lower parameter of 36 months was an undiscounted figure.  Mr Ross argued that a discounted lower level figure would have been around 23 months and this should have been employed by the judge.

17.  The applicant’s second ground of appeal complained that the judge erred in Charges 2, 3 and 4 in treating the applicant, who was a man of good character before committing these four offences, as a repeat offender and enhancing the starting point for each of the offences for this aggravating factor.  In support of this ground of appeal Mr Ross argued that a repeat offender is subject to an enhanced sentence only when and because he reoffends after having been convicted and sentenced on an earlier occasion.  In support of this ground he relied on HKSAR v Chan Pui Chi[8] and HKSAR v Chau Hon Kwong[9].

18.  The applicant’s third ground of appeal complained that the 2 months’ enhancement of the starting point of Charge 1 for the applicant having committed the offence whilst a Form 8 holder was manifestly excessive by reference to its initial staring point of 3 months, as well as by comparison to the sentences the judge imposed for the three other offences. 

19.  In the fourth ground of appeal Mr Ross argued that the judge wrongly imposed a sentence of 48 months’ imprisonment after having found that the overall criminality of the four offences should warrant a term of only 44 months in totality.

The respondent’s reply

20.  Ms Margaret Lau, Senior Public Prosecutor, appeared for the respondent. 

21.  In reply to the first ground, she submitted that the judge did not make any mistake in his calculations.  She submitted that in sentencing a defendant for multiple offences, the ultimate consideration is not by which method the judge reaches his totality but whether the total sentence is appropriate for the overall criminality.  She relied on the judgment of the Court of Appeal in HKSAR v Kwok Shiu To[10].

22.  In reply to the second ground, Ms Lau submitted that the judge had correctly made reference to the fact that the applicant trafficked in drugs on multiple occasions over a period of time as an aggravating factor in the present case, but not that the applicant was a “convicted” trafficker. 

23.  In reply to the third ground, Ms Lau said the judge was entitled to enhance the sentences for the fact that the applicant committed the offences whilst he was a Form 8 holder, and the degree of any such enhancement is a discretion that is left to the sentencing judge.  She referred to judgments of the Court of Appeal in HKSAR v Shah Syed Arif[11].  and HKSAR v Ali Saif[12] and submitted that the enhancements imposed by the judge for this factor were entirely appropriate and not manifestly excessive. 

24.  In reply to the fourth ground, Ms Lau submitted that the reference to “44 months” in the judge’s Reasons for Sentence was no more than a typographical error and the applicant’s ultimate sentences were set out in a clear manner in the last part of the judge’s Reasons for Sentence.

25.  Ms Lau argued that the overall sentence of 48 months was neither manifestly excessive nor wrong in principle given that the applicant’s repeated acts of trafficking were clearly commercial and were carried out within a short period of time in a busy area in Hong Kong.  Relying on the judgment of the Court of Appeal in HKSAR v Muhammad Riaz Awan[13] she submitted that these circumstances called for a deterrent sentence to be imposed.       

Discussion

26.  In my view Ground 1 is reasonably arguable.  In addressing the issue of totality the judge used as a sentencing tool the setting of an upper parameter of 57 months and 10 days (calculated by aggregating the individual sentences after they had been discounted for the plea of guilty) and a lower parameter (calculated by reference to the total narcotic of the drugs as though they had all been trafficked in one transaction). However, when calculating the lower parameter the judge failed to discount it by one-third to take into account the pleas of guilty.  Had he done so the lower limit would not have been the 36 months that he adopted but a much lower figure.  This in turn may have affected what he assessed was an appropriate totality for these offences. 

27.  Ground 2 is reasonably arguable.  I do not understand the judge to be sentencing the applicant on the basis that he was a convicted trafficker, but that he had committed the four offences in question within a short period of time.  That is, he was a multiple offender.  Multiple offenders fall to be sentenced on the basis of the principles set out in HKSAR v Ngai Yiu Ching[14].  Clearly, the existence of the other offences aggravate the applicant’s overall culpability and this is usually reflected by orders of consecutiveness.  But, if each subsequent offence is treated as aggravated by being committed so soon after the earlier offence and for that reason its starting point is enhanced, it is reasonably arguable that there is, thereby, created the risk of double punishment.  The defendant’s culpability is punished by both an enhanced starting point and by an order of consecutiveness.  However, if the totality principle is properly applied at the end of the sentencing process this risk may be more imaginary than real.

28.  Ground 3 is reasonably arguable, although I note that it has no impact on the final sentence if, like the judge, it is ultimately ordered to be served concurrently with the other sentences.  

29.  I grant leave on Ground 4.  It may be that the Court of Appeal would regard the judge’s reference to 44 months as simply due to a minor human error but that is for the Court of Appeal to decide. 

30.  I note that as a consequence of the consecutive sentencing orders being made non-sequentially, the sentences for both Charges 2 and 4 were ordered to be served consecutively and partially consecutively to the sentence for Charge 3.  This raises a question of whether the effect of this order is that the sentences for Charges 2 and 4 run concurrently with each other which, if so, would produce a final sentence of 3 years’ imprisonment.

Disposition

31.  For these reasons I granted the applicant leave to appeal on all his four grounds of appeal.  Mr Ross said he may wish to amend his Perfected Grounds of Appeal to incorporate the issue I raised in respect of whether the sentence for charges 2 and 4 are to be served concurrently with each other or partially consecutively and so I gave him leave to do so.

[1]     CAAR 3/1996, unreported, 30 April 1996.

[2]   [1990] 2 HKLR 370.

[3]   Appeal Bundle, page 21D-E.

[4]      [2009] 2 HKLRD 437

[5]      [1987] HKLR 221

[6]      [1995] 2 HKC 798

[7]      [2001] 3 HKLRD 95

[8]      [1999] 2 HKLRD 830

[9]      [2011] 1 HKLRD 630

[10]     [2006] 2 HKLRD 272

[11]     [2016] 4 HKLRD 664

[12]  [2018] 6 HKC 19

[13]     CACC 135/2010, unreported, 3 December 2010.

[14]   [2011] 5 HKLRD 690