HKSAR v. HUSSAIN ABID

CACC 194/2017

[2018] HKCA 376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 194 OF 2017

(ON APPEAL FROM HCCC NO 121 OF 2016)

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REASONS FOR JUDGMENT

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Hon Zervos J (giving the Reasons for Judgment of the Court):

1.  The applicant applied for leave to appeal the sentence of 11 years and 10 months’ imprisonment imposed on him by Madam Justice Campbell-Moffat (the judge) on 6 June 2017, following his conviction on his own plea to a single count of trafficking in a dangerous drug, namely, 1.02 kilogrammes of a solid containing 475 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  Two matters arose in this application in relation to the applicant’s sentencing proceedings.  First, the applicant contested the quantum of the narcotic content of the cocaine, occupying court time and delaying the court proceedings.  This became an issue on the question of the applicant’s discount for his plea of guilty.  Secondly, even though the applicant was a Form 8 recognizance holder at the time of the offence, the judge did not enhance his sentence for this aggravating factor.

3.  The applicant appeared in person.  Prior to the hearing, we informed him that pursuant to section 83I of the Criminal Procedure Ordinance, Cap 221, this Court had power to pass a sentence for the offence under consideration that it thinks appropriate by either increasing or reducing it.  He chose not to proceed with his application, but we said that we would nevertheless set out our reasons in respect of his grounds of appeal.  This we now do.

The grounds of appeal

4.  In the papers filed by the applicant with the Court, he complained that his sentence was manifestly excessive.  He acknowledged that he committed a crime for which he should be punished but he believed his sentence was excessive because this was his first offence.  He explained that he came to Hong Kong from Pakistan in 2009 to seek asylum, but the subsidy provided to him was inadequate to sustain a living, so he worked illegally to earn extra money.  He stated that he got involved in this offence because he was used by others who took advantage of his vulnerability.  He also stated that his parents are very old and he wished to take care of them.  He pleaded for clemency, and asked for a shorter sentence.

The court proceedings

5.  On 14 April 2016, the applicant’s case was listed for a pre-trial review on 24 April 2017 and a trial on 4 to 12 July 2017. 

6.  Prior to the pre-trial review, counsel for the applicant informed the trial court by letter dated 20 April 2017 that the applicant would plead guilty to the count on the indictment but requested that the pre-trial review be held as the applicant wished to have the dangerous drugs in question reanalysed. 

7.  On 24 April 2017, the case came on before the judge and was put over to 27 April 2017 for plea.  At this hearing, defence counsel requested an adjournment which was granted to enable the applicant to have the narcotic content of the dangerous drugs reanalysed.  The case was adjourned to 6 June 2017 for plea and sentence.

8.  At the adjourned hearing, defence counsel informed the judge that the applicant could not afford the cost of a private chemist to test the dangerous drugs, and this prompted an application for the dangerous drugs to be retested by the government chemist.  The judge refused the application and proceeded to take plea from the applicant, who pleaded guilty. 

9.  After the summary of facts were read out, but before mitigation, defence counsel on instructions from the applicant, renewed the application for retesting of the dangerous drugs.  The judge reminded the applicant:  

“The government test certificate is conclusive unless there are good grounds, and of course the court will entertain an application on good grounds, which means that there must be something more than a bare assertion that the drugs don’t have the narcotic content that the government chemist has found.” [1]

10.  Defence counsel noted that he was unable to advance a reason to justify the retesting which was again refused by the judge.  Mitigation was then presented on behalf of the applicant.

The admitted facts

11.  The summary of facts submitted in relation to the offence can be summarised as follows.  In the evening of 12 June 2015, police officers mounted and anti-drug operation at the Yau Ma Tei MTR Station. The applicant was observed by a police officer carrying a plastic bag and behaving suspiciously.  As a result, police officers intercepted the applicant and examined the plastic bag.  They found inside the plastic bag, 52 pellets which upon later analysis were confirmed to contain a total of 1.02 kilogrammes of a solid containing 475 grammes of cocaine.  The street value of the dangerous drugs at the time of the offence was $1,067,940.

12.  The applicant informed the police officers that he was a Form 8 recognizance holder.  He was arrested and cautioned by the police.  He exercised his right to remain silent at the scene and later when interviewed.

The mitigation

13.  The background and personal particulars of the applicant were that he was 24 years of age at the time of the offence with no previous convictions.  He was born in Pakistan and he came from a large family.  He left school at the age of 11 and worked as a carpenter before coming to Hong Kong. His mother was still alive and was in her mid-50s, but his father had passed away.  He came to Hong Kong in 2009 and made an application as a torture claimant in the same year.  His application was eventually refused in November 2015, while he was in custody, awaiting the outcome of this case.

14.  Defence counsel submitted on the applicant’s behalf that he was merely a courier. 

15.  He next submitted that the applicant had no previous convictions which was a factor that he urged the judge to take into account when considering whether to enhance his sentence.  He explained that the court had a discretion in relation to the enhancement to the sentence for being a Form 8 recognizance holder and that there were no established guidelines for quantum of the enhancement.  He noted that persons seeking asylum in Hong Kong were not being processed promptly.  While they remained in Hong Kong, and were prohibited from working for a period of years, this encouraged such persons to commit crimes.  He further noted that the applicant did not commit the offence immediately after arriving in Hong Kong and had been in Hong Kong for a period of 6 years without committing a crime.  He submitted that in the applicant’s case, he should be given only a minimal enhancement.  He said:

“I would say here, if we look at the circumstances – if the court accepts what I say, he’s been a mere courier, no previous convictions, and the length of period before he committed this offence, I would urge the court to, given that there is no mathematical guidelines as with the starting point for the cocaine, which is a different issue, to adopt, if the court was minded to exercise its discretion to enhance, as lower a – the lower end of the scale, rather than the upper end of the scale. I say the lower end, there’ll be – there are cases of a few months and there’s cases of longer than that, but I would urge the lower end of the scale enhancement for that.”[2]

16.  He finally submitted that the applicant should be given the full one-third discount for his guilty plea, notwithstanding that the applicant sought to question the quantity of cocaine narcotic of the dangerous drugs seized and delayed the proceedings.

The reasons for sentence

17.  The judge referred to the appropriate sentencing guidelines laid down in R v Lau Tak Ming,[3] noting that the appropriate starting point for trafficking in 400 to 600 grammes of cocaine, was in the range of 15 to 20 years’ imprisonment.  

18.  The judge adopted a starting point of 16 years and 10 months’ imprisonment for the quantity of cocaine narcotic involved of 475 grammes.  

19.  The judge acknowledged that it was an aggravating factor that the applicant was a Form 8 recognizance holder when he committed the offence but chose not to enhance his sentence.  She explained she did not do so “as you are of good character, and because of the other circumstances of this case.”[4]

20.  When it came to determine the discount to be given to the applicant for his guilty plea, the judge noted that the new guidelines for discounts to a sentence for a plea of guilty of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, did not apply to the applicant’s case because he was arrested before it was handed down. 

21.  As for the delay in the proceedings because the applicant wished to contest the narcotic content of the dangerous drugs, the judge went on to note:

“… However, it has always been within the discretion of the court to take into account the passage of court proceedings and the behaviour of the defence to those court proceedings and the timing of a guilty plea. You will receive a slightly reduced discount of approximately 30 per cent because of the court time that I consider that you have wasted and the extra expense to the public purse.

… That is not as severe as that suggested in Ngo Van Nam, but it marks the court’s displeasure at the course of action you chose to take, the extra public expense and the late plea of guilty, and it also sends a warning to other defendants in your position that legitimate concerns will meet with a degree of latitude from the court where the circumstances suggest that such latitude is appropriate, but wasting court time without a reasonable and substantiated explanation will not.”[5]

22.  The judge noted that there were no other mitigating factors that warranted a further reduction to his sentence.  She sentenced the applicant to a term of 11 years and 10 months’ imprisonment, after she reduced the starting point of 16 years and 10 months’ imprisonment by 30 percent for his guilty plea. 

The respondent’s submissions

23.  Mr Pierre Lui, on behalf of the respondent, submitted that the judge’s adoption of a starting point of 16 years and 10 months’ imprisonment was rounded off below the starting point as calculated arithmetically according to the relevant sentencing guidelines.  He submitted that the starting point was slightly understated. 

24.  Mr Lui referred to the recent decision of HKSAR v Mahabul Alam Khan,[6] where this Court was of the view that the trial judge had failed to properly enhance the sentence of the applicant who was a Form 8 recognizance holder at the time of committing the offence, namely trafficking in 238.57 grammes of cocaine narcotic.  The Court accordingly enhanced the sentence by 15 months’ imprisonment to reflect this aggravating factor.  Although he noted that Mahabul Alam Khan was handed down subsequent to the sentencing of the applicant, he submitted that the need for enhancement in respect of the commission of serious offences by Form 8 recognizance holders had been well-established in earlier decisions, such as HKSAR v Shah Syed Arif.[7]  Accordingly, he submitted that the judge was wrong not to enhance the sentence.

25.  He also submitted that the judge was entitled not to give the applicant a full one-third discount because judicial resources had been unnecessarily wasted as a result of the unsubstantiated dispute in relation to the narcotic content of the dangerous drugs. 

26.  Overall, he submitted that the judge had been very generous in the sentence imposed on the applicant and the applicant had no basis for complaint.  In fact, he submitted that the sentence should have been substantially greater and should be increased.  

Discussion

27.  There can be no complaint with the starting point for the sentence adopted by the judge of 16 years and 10 months’ imprisonment for 475 grammes of cocaine narcotic, which was within the range of sentence set by the relevant sentencing guidelines. 

28.  The judge recognised as an aggravating factor, warranting an enhancement of the applicant’s sentence, the fact that he was a Form 8 recognizance holder at the time of the offence of this serious case of trafficking in dangerous drugs.  In our view, she wrongly decided not to do so because of the applicant’s good character and other circumstances of the case.  The basis of the applicant’s good character seems to be that he had been in Hong Kong for six years and had no previous convictions.  This would not be a basis for a reduction of sentence in such a grievous case as evidenced by the large quantity of cocaine narcotic that was trafficked by the applicant.  The other circumstances to which the judge alluded appear to concern the applicant’s role as a courier in the trafficking of the cocaine narcotic, and his status and circumstances as a non-refoulement claimant in Hong Kong.  These are not proper mitigating factors that warrant a departure from the sentencing guidelines in relation to Form 8 recognizance holders, and should have been soundly rejected by the judge in the proper exercise of her discretion.

29.  In this regard, this Court in Shah Syed Arif explained the relevant sentencing guidelines.  In a recent decision of this Court in HKSAR v Ali Saif,[8] Macrae VP stated:

“17. When Shah Syed Arif was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, 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.”

30.  He went on to briefly mention the enhancements given in other authorities, including a series of drug trafficking cases of cocaine narcotic and the corresponding enhancements.  One case that he mentioned was HKSAR v Dramane Mouhamed Saiti[9] where the Court said that the applicant could have had his sentence enhanced by as much as 18 months’ imprisonment for trafficking in 440 grammes of cocaine narcotic.  We are of the view that such an enhancement would have been appropriate in the circumstances of this case. 

31.  In our judgment, the applicant should have had his sentence enhanced for the fact that he was a Form 8 recognizance holder at the time of the offence.  He committed a very serious crime of trafficking in 475 grammes of cocaine and for this quantity he could have had his sentence enhanced by as much as 18 months’ imprisonment. 

32.  The applicant cannot complain about the reduction of the discount for his guilty plea from one-third to 30 percent for unnecessarily occupying the court’s time and resources, and delaying the court proceedings, by unmeritorious applications to have the dangerous drugs reanalysed when there were no reasonable or justifiable grounds for doing so. 

33.  The applicant has no cause for complaint for the sentence imposed on him in light of the sentencing guidelines and principles. He should consider himself most fortunate that he did not receive a greater sentence than he did.  Had he proceeded with the application, we would have increased his sentence as indicated in our reasons. 

Conclusion

34.  The application for leave to appeal against sentence was withdrawn and the appeal was dismissed.