HKSAR v. JASSEY FRANCIS JA AND OTHERS

CACC 262/2017

[2018] HKCA 369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 262 OF 2017

(ON APPEAL FROM DCCC NO 25 OF 2017)

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REASONS FOR JUDGMENT

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1.  The 2^nd and 3^rd applicants (D1 and D2 at trial respectively) faced a number of charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Whilst the 2^nd applicant pleaded guilty to the charges he faced (namely, Charges 1, 2 (with the 3^rd applicant) and 6 (with D3), the 3^rd applicant pleaded not guilty to Charge 2, the only charge he faced. Accordingly, he stood trial alone before Deputy Judge A Yim (“the judge”) in the District Court. It will be convenient to refer to the applicants by their trial designations, namely D1 and D2, since D3 (originally the 1^st applicant) has now abandoned his appeal.

2.  D2 has sought leave to appeal against his conviction and sentence of 27 months’ imprisonment on Charge 2, while D1 has sought leave to appeal against his overall sentence of 40 months’ imprisonment on Charges 1, 2 and 6.

3.  On 22 June 2018, D2, who had already completed his sentence, did not materialise at the hearing of his applications for leave, although I was quite satisfied, having made appropriate enquiries, that he had been properly served with notice of this hearing.  Since the proceedings in the court below had been delayed by his decision to discharge no less than three consecutive counsel assigned to him, I decided to hear and determine his application, notwithstanding that he was not present in court, so that he would know exactly where he stood in respect of his applications for leave to appeal.

4.  Having done so, I refused D2 leave to appeal against either his conviction or sentence.  In respect of D1, having heard his submissions, I refused him leave to appeal against sentence.  I said I would hand down my reasons for dismissing these applications in due course.  These are my reasons.

5.  For ease of reference, Table A below sets out the details of the three charges.  Table B is a chronology of the proceedings in the court below (which is not only relevant to the timeliness (or untimeliness) of the pleas entered by the applicants, but also explains why the trial of D2 occupied more than 11 days and took almost one month to complete).

Table A

Charge	Date(s) of offence	Subject matter of the charge	Named defendant(s)
Charge 1	3.5.2016	0.45 gramme of a powder containing 0.34 gramme of cocaine	D1 only
Charge 2	4.5.2016	0.37 gramme of a powder containing 0.20 gramme of cocaine	D1 and D2
Charge 6	7.6.2016 & 8.6.2016	8.87 grammes of a powder containing 5.71 grammes of cocaine	D1 and D3

Table B

Date(s)	Nature of the hearing	Remarks
2.2.2017	Plea (before HH Judge Ko)	D1, D2 and D3 pleaded not guilty.  Trial dates were fixed accordingly.
22.6.2017	Pre-trial review (before HH Judge A Kwok)	D1 and D2 maintained their pleas of not guilty.  However, D3 confirmed he would be pleading guilty.
5.7.2017	Trial (Day 1)	D1 and D3 pleaded guilty and were convicted upon their admissions of the Summary of Facts[1].  (It is to be noted that D1’s solicitors had, following the pre-trial review hearing of 22 June 2017, subsequently sent a letter to the court on 28 June 2017 indicating that D1 would be pleading guilty.) D2, represented by a second counsel, had a legal representation issue.
6.7.2017	Mention (appearance of D2 only)	A third counsel was assigned to act for D2.  His case was adjourned.
7.7.2017	Trial (Day 2)	D2 pleaded not guilty but was not ready to proceed.
10.7.2017	Trial (Day 3)	D2 indicated his intention to discharge his third counsel.
24-28, 31 July and 1-2 August 2017	Trial (Days 4 to 11)	Initially, D2 acted in person at his trial which formally commenced on 24.7.2017.  He was subsequently represented by a fourth counsel on 25.7.2017.
9.8.2017	Verdict and mitigation
16.8.2017	Sentence

The charges

6.  Between 13 March and 17 August 2016, the police mounted an operation known as “Jade Goblet” (“the operation”).  Pursuant to the operation, an undercover agent was deployed to purchase dangerous drugs from drug traffickers in the areas of Lan Kwai Fong in Central, and also in Wan Chai[2]. The undercover agent was protected by two supporting officers nearby, who would intercept the drug traffickers upon the completion of every “controlled‑buy” transaction and record their particulars[3]. Insofar as the charges are concerned, during the operation, DPC 3903, an undercover agent, successfully accepted dangerous drugs from D1, D2, D3 and a fourth defendant (D4) at two specific locations, namely No 41 Wyndham Street and No 41 D’Aguilar Street in Central.

Charge 1

7.  On 3 May 2016, at around 2318 hours, DPC 3903 was approached by D1 on No 41 Wyndham Street, who offered to sell him one gramme of cocaine for $1,000.  After DPC 3903 nodded his head and said “one gramme”, D1 took out a transparent re‑sealable plastic bag, hidden in his right sock, and passed it to DPC 3903, who then gave $1,000 to D1.  DPC 3903 then walked away and informed his colleague DPC 8367, who was nearby, of D1’s appearance and clothing.  As a result, D1 was intercepted by DPC 8367.  The plastic bag contained 0.34 gramme of cocaine, the retail value of which was HK$477.45[4].

Charge 2

8.  On 4 May 2016, at around 2328 hours, DPC 3903 was again approached by D1 at the same location, who similarly offered to sell him one gramme of cocaine at $1,000.  After receiving a positive reply from DPC 3903, D1 told D2, who was standing beside him, to take out a transparent re‑sealable plastic bag hidden in the latter’s right sock.  The plastic bag was passed to DPC 3903, who gave $1,000 to D1.  DPC 3903 then left and reported to DPC 8367, who immediately intercepted D1 and D2 for enquiry.  The plastic bag contained 0.2 gramme of cocaine, which had a retail value of $392.57[5].

Charge 6

9.  On 7 June 2016, at about 2330 hours, DPC 3903 was standing at No 41 Wyndham Street when he was approached by D3, who offered to sell him 20 grammes of cocaine at a “cheap price”.  In response to DPC 3903’s enquiry about price, D1, who was standing next to D3, said “$14,000 for 20 grammes of cocaine”.  At D1’s request, DPC 3903 got into a taxi together with D1 and D3 and was taken to Chungking Mansion, Tsim Sha Tsui, where the cocaine was subsequently supplied to DPC 3903 in the form of 20 transparent re‑sealable plastic bags.  DPC 3903 handed over $14,000 to D3 and walked away.  DPC 6349 was then informed of D1 and D3’s appearance and clothing.  They were intercepted a few minutes later, at 0012 hours on the next day.  The retail value of the cocaine was $10,413.38[6].

10.  D1 and D3 accepted the facts of the charges they faced when pleading guilty.

Prosecution case in respect of Charge 2 against D2

11.  DPC 3903[7], the undercover agent, testified that he had been to the Lan Kwai Fong area as a decoy almost every night from 14 March 2016.  There, he had usually mingled with the same group of “black males” and was known to them as “Smiley”[8].  One of the males, called “Kelly”, whom he identified as D2, was seen by DPC 3903 on 15 occasions[9], which are particularised as follows:

Occasion	Date	Location	Remarks
1st	14.4.2016	41 Wyndham Street	DPC 3903 had a clear view of Kelly for 8 to 10 minutes.[10]
2nd	4.5.2016	41 Wyndham Street	DPC 3903 had a clear view of Kelly for about 8 minutes.[11]
3rd	24.5.2016	41 Wyndham Street	DPC 3903 had Kelly within his sight for about 5 minutes.[12]
4th	31.5.2016	41 Wyndham Street	/
5th	1.6.2016	41 Wyndham Street	/
6th	7.6.2016	41 Wyndham Street	/
7th	20.6.2016	41 Wyndham Street	/
8th	24.6.2016	41 D’Aguilar Street	/
9th	28.6.2016	41 Wyndham Street	/
10th	29.6.2016	41 Wyndham Street	/
11th	12.6.2016	41 Wyndham Street	/
12th	15.6.2016	41 Wyndham Street	/
13th	21.6.2016	41 Wyndham Street	/
14th	3.8.2016	41 Wyndham Street	/
15th	12.8.2016	41 Wyndham Street	/

12.  DPC 3903 said that, on 17 August 2016, the operation turned overt[13] and D2 was arrested at 1718 hours by DPC 3406 in respect of Charge 2[14].  In a video recorded interview conducted on the same day, D2 denied knowledge of any event occurring at No 41 Wyndham Street, or of D1.  The relevant questions and answers in interview were:[15]

“Q Have you ever been to Wyndham Street outside No. 41? Have you ever been to there?

A I don’t even know there.

Q You don’t - - you don’t know there.

A I don’t know where is … I don’t know there.

Q You don’t know there? Okay, do you know a person the name is Jassey Francis Ja? Do you know that person?

A No.”

13.  DPC 8367[16] said that, having intercepted D1 and D2 on the night of 4 May 2016, he asked for, and checked, their identification documents.  So far as D2 was concerned, DPC 8367 was satisfied that his appearance matched the photograph on his Form 8 recognizance form[17]. DPC 8367 particularly remembered that D2 was wearing long Khaki pants.[18]

Defence case (D2)

14.  Like D1 and D3, D2 was a Form 8 recognizance holder.  He testified that he was not at the scene at the relevant time, thereby putting, inter alia,the identification and credibility of DPC 3903 and DPC 8367 in issue.  He maintained he had met DPC 3903 for the first time in Kowloon City Magistracy, at which time he was involved in another trafficking case, for which he had been arrested on a different occasion during the operation[19]. Nevertheless, he did not know why or how DPC 8367 had obtained the particulars of his Form 8 recognizance document.

Other matters disputed by D2 at his trial

15.  At trial, D2 took issue with the non-production of the call records between DPC 3903 and DPC 8367.  In response to that issue, two prosecution witnesses[20] were called, who said that such records could not be retrieved because of the lapse of time[21].

16.  D2 also adduced the computer records[22] of his Octopus card, which he said had been used solely for travelling[23].  He relied on those records to show that he did not visit the scene as alleged and that, on some occasions, he was entering or exiting different MTR stations at or around the time at which DPC 3903 said he was seen at the crime scene (some examples of which are given below).  On the other hand, DPC 3903 said that he occasionally adjusted the time of his watch; the timing records of his Occurrence Book had to be considered in that context[24].

Occurrence Book		Octopus Card record		DPC 3903’s explanation
Date and time	Event	Date and time	Event
14.4.2016 @ 2258 hours	Meet Kelly for the first time outside 41 Wyndham Street	14.4.2016 @ 2256 hours	Exit Central Station	D2 could have arrived at the scene in 2 minutes if he had walked fast.[25]
4.5.2016 @ 2328 hours	Meet Kelly outside 41 Wyndham Street	4.5.2016 @ 10:21:20 hours	Exit Austin Station	D2 had sufficient time to attend the scene by bus, star ferry, public light bus or taxi.[26]
1.6.2016 @ 2345 hours	Meet Kelly for the fifth time outside 41 Wyndham Street and chat with him for a few minutes	1.6.2016 @ 21:49:50 hours	Exit Tsuen Wan West Station (without any further MTR travel record)	D2 could go to the crime scene by bus or taxi.[27]
20.6.2016 @ 2315 hours	Chat with Kelly outside 41 Wyndham Street for several minutes	20.6.2016 @ 2305  hours	Exit Admiralty Station	Travelling from Admiralty to the crime scene in a taxi would take only 3 minutes.[28]
29.6.2016 @ 2345 hours	Meet Kelly outside 41 Wyndham Street	29.6.2016 @ 21:39:46 hours	Exit Mongkok Station	D2 had sufficient time to travel from Mongkok to the scene by bus, public light bus or taxi.[29]
21.7.2016 @ 2300 hours	Chat with Kelly outside 41 Wyndham Street	21.7.2016 @ 2301 hours	Exit Central Station	The distance on foot between the two locations was only 2 to 3 minutes.[30]

17.  It was also submitted that DPC 3903’s evidence was tainted.  In particular, he was motivated to cover up any mistaken identification, lest the immunity given to him be revoked[31].

Reasons for verdict

18.  In the context of the identification evidence of DPC 3903, the judge directed her attention to the following matters:[32]

“…I reminded myself that an honest and convincing witness could be a mistaken witness.  I reminded myself of the risk that PW3 could be influenced by the other subsequent encounters with “Kelly” and should examine closely the circumstances in which the identification came to be made in particular that on the 4 May 2016 before I accept his evidence.”

19.  On that same issue, the judge said:[33]

“In the present case, PW3 started to mingle with the group of black males gathered around in LKF since 14 March 2016. It was his task to distinguish and recognize them where they were involved in any drug transaction. He had direct inter-action with “Kelly” during the drug transactions and he remained in the vicinity to have “Kelly” under observation after each transaction on 14 April 2016 and 4 May 2016. These were not fleeting glances. He recognized “Kelly” when he met him again on 4 May 2016, and next on 24 May 2016, he said he further met “Kelly” for another 12 times, a total of 15 times up to 12 August 2016. After due consideration of all the circumstances I find that this was a true case of recognition.”

20.  As to DPC 8367’s identification, the judge said:[34]

“PW4 gave evidence that on that day he saw PW3 with 2 black males outside 41 Wyndham Street, the area was bright with light from nearby convenience store and lamp post.  He was 3 to 5 meter from them, he saw the three had some hand movement before the “high five” signal, his view was not obstructed.  He kept the two black males under observation and went forward to them after about 4 minutes…I considered and accept PW4 evidence and find that he was able to identify and compare features of the man in Khaki long pant with the features of the man depicted in the photo.”

21.  In the result, the judge accepted the evidence of both DPC 3903 and DPC 8367 that D2 was Kelly, or the male in long Khaki pants, whom they had met on 4 May 2016[35].

22.  The judge emphasised that she did not draw any adverse inference against D2 in respect of his previous case before Kowloon City Magistracy, or any other unlawful drug dealings, in which Kelly might have been involved[36].

23.  The judge found that D2 was an incredible witness and, inter alia, rejected his account that he had not met DPC 3903 and DPC 8367 between 14 April 2016 and 12 August 2016[37].

24.  The judge found that none of the issues challenged by the defence – including the absence of telephone records, the matter of times, DPC 3903’s alleged improper motive – had cast a reasonable doubt on the prosecution case.  The judge pointed out that:[38]

“With the little test done in court… suffice to say the time shown on the officer’s watch might be different from that of the MTR system.”

And that:[39]

“To PW3’s understanding he was selected to be the undercover agent in this operation, to complete the drug transactions was to collect valuable narcotic intelligence, he did not have any target to meet, all the activities during the operation were under Police monitor and he was acting in accordance to his superior’s instruction in the capacity of a police officer. I considered and find PW3 to be an honest and reliable witness.”

Submissions on late pleas

25.  Counsel for D1 in the trial below, submitted that his client could not enter a plea in the District Court on plea day because the prosecution had not then served him with the requisite translated documents.  It was submitted that D1 should not lose his one‑third discount in such circumstances.  It is perhaps worth quoting counsel’s submissions in full:[40]

“… this concerns the one-third aspect, surely the point on this concerns the right of a defendant to know before entering his plea, not only what the nature of the allegation is against him or her, but also which each of the witnesses relied upon by the prosecution say against that person. This, of course, reflects the burden which is on the prosecution to prove a case or prove a charge against the defendant, but it also reflects the reason why a transfer bundle is served on a defendant in the first place and that transfer bundle, as you are aware, your Honour, is served prior to the transfer to the District Court and prior to the plea before the plea court.

Now, where the documents in that bundle are written in a language which cannot be read by the defendant, that prejudices that defendant as against another defendant who can, of course, read in this case Chinese. So the position is at the time of transfer and plea, a defendant who doesn’t read Chinese may know the nature of the allegation as set out in a summary of facts, and I have to say that in some instances in the past, those summary of facts are not necessarily complete or they may be inaccurate in one or more respects, but irrespective of whether or not the allegation is known, that defendant may not know because he cannot read Chinese what the witnesses have to say against him, and that is a material factor which a defendant is entitled to know before he’s called upon to make his -- enter his plea.

And on this aspect, this prejudice, in my submission, is a matter which you can take into account when deciding whether or not a plea which is entered at a later stage, beyond the plea date, is entitled to the one‑third discount or a reduced amount on that discount.

As I say, there is this discretion available to the court, notwithstanding the decision of the Court of Appeal setting out the current practice of discounts. The discretion is always there and it is a matter, as I say, because in this instance the defendants do not read Chinese, that you can take into account when assessing whether or not you should exercise that discretion of whether a full one-third discount should be awarded in respect of a plea which has been entered after the plea day.

As I say, it comes down -- it’s not in any way a matter of punishing the police or whatever for the late delivery of translated documents, it’s nothing to do with that.  It comes down to the fundamental right of a defendant to know fully what the case is against him or her at the time he is asked to enter his plea, and that is the essential element.”

26.  In connection with the above, some documents including chronologies were submitted by prosecuting counsel and defence counsel respectively.  Each chronology set out the dates on which requests for prosecution material were made and the relevant material was received[41].

Sentencing

27.  In respect of the complaint that the prosecution had delayed providing D1 with translated documents, resulting in the entering of his guilty pleas after the plea day, the judge said:[42]

“8. Mr Mitchell representing D1 and Mr Ross representing D3 and D4 in persuading me to allow them the full one-third discount, both relied on the late provision of prosecution materials, in particular the English translation of Chinese witness statement, as proper legal advice could not be provided before the receipt of the English translation. The defence went on to submit that there was only the evidence of the undercover agent, there was no finger print, no DNA, no photo etc, that the defendants were entitled to proper legal advice before they indicated their plea.

9. Fiat counsel Miss Mohamed raised objection, it was her position that there was no delay in the provision of the prosecution materials and the receipt of English translation at a later time should not be a mitigating factor to allow the defendants one-third discount.

10.  Further information related to the matter was provided by the parties as directed during the adjournment and this morning for my consideration.  While it was proper for the defendants to require advice from their lawyers on the strength of the evidence, they did not require it in order to know whether they were guilty or not; they required it in order to assess the prospects of conviction or acquittal, which was different.”

Re D1

28.  In the case of D1, the judge adopted the following starting points[43]:

(a) Charge 1: 24 months;

(b) Charge 2: 24 months; and

(c) Charge 6: 42 months.

29.  Regarding it as an aggravating factor that D1 had committed the offences whilst being permitted to remain at liberty in Hong Kong during the processing of his non-refoulement application, the judge enhanced his sentence on each charge by 3 months[44].

30.  The judge gave D1 a 21% discount, noting that his pleas of guilty were indicated and tendered only after the pre‑trial review hearing of 22 June 2017[45].

31.  The resulting sentences on Charges 1, 2 and 6 were, therefore, as follows:

(a) Charge 1: (24 + 3) x (1 – 21%) = 21 months

(b) Charge 2: (24 + 3) x (1 – 21%) = 21 months

(c) Charge 6: (42 + 3) x (1 – 21%) = 35.5 months

32.  In terms of totality, the judge said that, since the three charges concerned separate incidents, a partly consecutive sentence was appropriate.  She ordered that 2.5 months of the sentence on Charge 2 and 16.5 months of the sentence on Charge 3 be served consecutively to the sentence on Charge 1, thus making a total sentence of 40 months’ imprisonment[46].

Re D2

33.  The judge adopted the same starting point of 24 months’ imprisonment in respect of Charge 2, which was the only charge faced by D2.  In the light of his status as a non-refoulement applicant, the judge also enhanced his sentence by 3 months.

34.  The judge noted that D2 had two previous convictions, including one offence of possession of dangerous drugs in February 2016, and another offence of trafficking in dangerous drugs, namely in KCCC 164/2017, the sentence for which was 12½ months’ imprisonment, imposed on 19 July 2017.

35.  Having regard to the principle of totality, the judge considered that D2 should receive an overall sentence of 30½ months’ imprisonment in respect of both KCCC 164/2017 and Charge 2.  Accordingly, she sentenced the applicant to 27 months’ imprisonment, ordering 9 months of the sentence on Charge 2 to run concurrently with the sentence in KCCC 164/2017[47].

Re D3

36.  For the sake of completeness, the judge noted that D3 had changed or indicated his guilty plea at the pre‑trial review hearing.  Accordingly, she gave him a 25% discount for each sentence[48].

37.  The judge also noted that D3 was 23 years old (hence a young offender) with a clear record[49]. Treating these as mitigating factors, she further reduced each of his sentences by 2 months[50].

Grounds of appeal against sentence (D1)

38.  D1 takes no issue with the basic starting points in respect of Charges 1, 2 and 6[51]. His complaints, as set out in his Form XI Notice and homemade written submissions dated 1 February 2018, can be summarised as follows:

(a) He should have been given a one‑third discount for his guilty pleas, which were not entered in a timely manner because at the time he had neither been served English translations of the prosecution materials, nor received sufficient legal advice from his trial counsel.  He referred to 11 magistracy court cases, saying that the defendants in those cases pleaded guilty only after their respective trial dates, all in early 2017, but nevertheless still received a one‑third discount of sentence[52];

(b) His sentence should not have been enhanced on the basis of his refugee status.  He referred to some 15 other magistracy court cases, asserting that each defendant of those cases was a Form 8 recognizance holder, yet their sentences were nevertheless not enhanced because of their refugee status[53];

(c) His mother had received a critical medical operation in mid‑2017.[54]  On 26 August 2017, his 4 year‑old son had succumbed to cancer[55].  His ex‑wife, who had been the mother of his son, had been raped and killed[56];

Grounds of appeal against conviction (D2)

39.  In his Form XI Notice, D2 asserted that he should not have been found guilty because there was no fingerprint, DNA, or CCTV evidence to link him with the offence.  He is further aggrieved that his evidence was wrongly rejected.

Grounds of appeal against sentence (D2)

40.  D2 also complains that his sentence was wrongly enhanced for his status as a Form 8 recognizance holder, and therefore too high.

Respondent’s submissions

41.  Mr Franco Kuan, on behalf of the respondent, submitted that the primary issue in the conviction of D2 was the credibility of the prosecution witnesses.  In that regard, the absence of fingerprint, DNA or CCTV evidence was neither here nor there.  On sentence, he submitted that it was well‑established in HKSAR v Ngo Van Nam[57] that a defendant would normally lose his/her one‑third discount if he only entered a guilty plea after the trial dates had been fixed.  He submitted that all of the starting points, the resulting sentences and the overall totality of the sentences could not be impugned.

Consideration

42.  I shall deal first with D2’s grounds of appeal against conviction.  The absence of DNA and fingerprint evidence to show that a defendant has handled a vital exhibit is a neutral fact: see, for example, HKSAR v Law Wing Hong[58]; HKSAR v Pham Thi Nga[59]; HKSAR v Butt Ummar[60]; HKSAR v Tsuchiya Koji[61]; HKSAR v Dramane Mouhamed Saiti[62]. The prosecution are not required to provide such evidence in a criminal case, and nor does the absence of such evidence in the normal course undermine a prosecution.  The same may be said of CCTV evidence.

43.  As for the issue of identification, the judge went to considerable lengths in dealing with the question of whether there might have been a mistaken identification, whether Kelly was D2 and the same person throughout DPC 3903’s observations and whether the identifying officer was a tainted witness.  She resolved all those issues in favour of the prosecution, so that she was sure that D2 was the man involved in Charge 2. The judge did not accept D2’s evidence and gave cogent reasons for rejecting it.

44.  Issues of fact and credibility are determined at trials, not at appeals.  I have examined the judge’s reasons for the conclusions to which she came, and can see no reasonably arguable grounds of appeal against conviction.  She had the obvious advantage as trial judge in listening to the evidence, as well as seeing and hearing the witnesses.  That is not an advantage an appeal court has.  I can see no area of the judge’s reasoning which might trouble an appeal court.  Leave to appeal against conviction is refused.

45.  In respect of the sentences on D1 and D2, these were very serious offences of actual trafficking for reward on the streets of Hong Kong by defendants who were only permitted to be at large in the community by virtue of the trust accorded to them by the people of Hong Kong, whilst their non-refoulement claims were being processed.  In D1’s case they were three separate offences, against a background of a conviction for the same offence.  Trafficking in dangerous drugs not only affects the people of Hong Kong but severely tarnishes the reputation of this city for order and security; particularly when those crimes are being perpetrated in parts of the city where locals and tourists alike frequent in large numbers.

46.  In the recent judgment of HKSAR v Ali Saiti[63], the Court of Appeal has said of enhancements for trafficking in dangerous drugs by non-refoulement claimants in possession of Form 8 recognizances, as follows, at §17:

“… 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”

47.  The present case was a serious case before the District Court of actual trafficking, carried out by a group of non-refoulement applicants from Gambia in West Africa, on the streets of Central, Hong Kong.  As for D1, he repeatedly trafficked in cocaine and was plainly deserving of a longer sentence than for one offence.  He cannot complain about the overall enhancement given for his status, particularly since he also had a previous conviction for trafficking in dangerous drugs, which was itself an aggravating feature.  However, the judge did not enhance his sentence for this factor, when she clearly could have done: see HKSAR v Abdallah[64]; HKSAR v Chau Hon Kwong[65]; HKSAR v Lam Mei Ching, Bet[66].

48.  As for D1’s discount, I can see no reasonably arguable ground of appeal that the judge was in error in reducing the applicant’s discount for plea, since it was not a timely one.  The judge obviously considered the matter carefully, in the light of submissions she received, and determined in her discretion that his sentence should only be discounted by 21% for what were clearly late pleas.  The applicant is an intelligent and articulate individual, who was able to make his submissions to me without the assistance of an interpreter.  It defies belief that he would have been unable to see the transfer papers with their English translations until after the pre‑trial review hearing of 22 June 2017.  Moreover, as the judge commented, he did not require legal advice, in the circumstances of this particular case, to know whether he was guilty of trafficking in dangerous drugs or not.

49.  I can see no reasonably arguable grounds for complaint by D1 against his overall sentence of 40 months’ imprisonment.

50.  As for the sentences passed on D2, I can also see no reasonably arguable grounds of appeal against sentence.

Conclusion

51.  For the above reasons, the applications for leave to appeal against conviction by D2, and for leave to appeal against sentence by D1 and D2, were refused.

52.  The applicants are both advised that they have the right to appeal to the Court of Appeal against conviction (in the case of D2) and sentence (in the case of D1 and D2).  However, they are also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody, if the Court were to come to the conclusion that there was no justification for renewing any of the applications.

[1] D4 pleaded guilty to Charges 3 and 5 on the same day.

[2] A list showing all persons arrested and the sentences received by them was submitted to the judge on 9.8.2017.  See “Case result and trial progress for Operation Jade Goblet” at Appeal Bundle, pp 132‑137.

[3] Reasons for Verdict, §3.

[4] The price in May 2016 was $1,061 per one gramme of powder: Summary of Facts, §12. $1,061 x 0.45 gramme of powder = $477.45.

[5] $1,061 x 0.37 gramme of powder.

[6] The price in June 2016 was increased to $1,174 per gramme of powder: Summary of Facts, §12.  $1,174 x 8.87 grammes = $10,413.38.

[7] PW3 at trial.

[8] Reasons for Verdict, §30.

[9] Reasons for Verdict, §39.

[10] Reasons for Verdict, §37.

[11] Ibid.

[12] Ibid.

[13] Reasons for Verdict, §7.

[14] Reasons for Verdict, §15.

[15] D2’s video recorded interview, ##193-198: Appeal Bundle, p 98.

[16] PW4 at trial.

[17] A copy of D2’s Form 8 recognizance was produced as Exhibit P9: Appeal Bundle, p 114.

[18] Reasons for Verdict, §§52-53.

[19] According to D2’s CRO, he was sentenced on 19 July 2017 to 12½ months’ imprisonment in respect of a single charge of Trafficking in a dangerous drug in KCCC 164/2017: D2’s CRO at Appeal Bundle, p 110.

[20] They were PW1, the officer-in-charge, and PW2, a fraud control clerk of China Mobile Ltd.

[21] Reasons for Verdict, §§23-24.

[22] Exhibits D1, D2 and D2(A).

[23] Reasons for Verdict, §46.

[24] Reasons for Verdict, §§41-42.

[25] Reasons for Verdict, §40(1).

[26] Reasons for Verdict, §49.

[27] Reasons for Verdict, §40(2).

[28] Reasons for Verdict, §40(3).

[29] Reasons for Verdict, §40(4).

[30] Reasons for Verdict, §40(5).

[31] Closing Submissions for D2, §77: Appeal Bundle p 128.

[32] Reasons for Verdict, §33.

[33] Reasons for Verdict, §60.

[34] Reasons for Verdict, §§51 and 53.

[35] Reasons for Verdict, §73.

[36] Reasons for Verdict, §22.

[37] Reasons for Verdict, §48.

[38] Reasons for Verdict, §42.

[39] Reasons for Verdict, §70.

[40] Transcript of 18.8.2017 proceedings: Appeal Bundle pp 77F-78E.

[41] MFI-11, MFI13 to MFI-15: Appeal Bundle pp 138-146.  It is relevant to note that, according to the prosecution’s chronology (MFI-13; Appeal Bundle p 140), the prosecution had faxed the “Summary of Facts” to the Legal Aid Department on 11.1.2017, and further faxed the “Amended Summary of Facts” to the Legal Aid Department on 1.2.2017.

[42] Reasons for Sentence, §§8-10.

[43] Reasons for Sentence, §15.

[44] Reasons for Sentence, §16.

[45] Reasons for Sentence, §18.

[46] Reasons for Sentence, §32.

[47] Reasons for Sentence, §§23 and 32.

[48] Reasons for Sentence, §28.

[49] Reasons for Sentence, §§26-27.

[50] Reasons for Sentence, §28, lines J-K.

[51] The 1^st applicant’s homemade written submissions dated 1 February 2018, page 3, where the 1^st applicant said “I basically understand and accepted the fact that, the sentence imposed by the district court is not manifestly excessive nor wrong in law”.

[52] D1’s homemade written submissions dated 1 February 2018, pages 3-4

[53] D1’s homemade written submissions dated 1 February 2018, pages 4-5.

[54] D1’s Form XI Notice, page 2.

[55] D1’s homemade written submissions dated 1 February 2018, page 6, first line.

[56] D1’s homemade written submissions dated 1 February 2018, page 5, last three lines.

[57] HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

[58] HKSAR v Law Wing Hong (unrep., CACC 169/1998, 11 November 1998).

[59] HKSAR v Pham Thi Nga (unrep., CACC 224/2011, 16 July 2012).

[60] HKSAR v Butt Ummar (unrep., CACC 324/2016, 27 September 2017).

[61] HKSAR v Tsuchiya Koji [2015] 6 HKC 463.

[62] HKSAR v Dramane Mouhamed Saiti (unrep., 191/2016, 14 June 2018).

[63] HKSAR v Ali Saiti (unrep., CACC 309/2017, 14 June 2018).

[64] HKSAR v Abdallah [2009] 2 HKLRD 437, at para 32.

[65] HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630, at para 33.

[66] HKSAR v Lam Mei Ching, Bet (unrep., CACC 24/2015, 1 June 2018).