HKSAR v. FARHAN ASLAM

CACC 125/2021

[2022] HKCA 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 125 OF 2021

(ON APPEAL FROM DCCC 43 OF 2021)

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J U D G M E N T

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1.  The applicant applies for leave to appeal against his sentence of 4 years and 7 months’ imprisonment that was imposed on him by District Court Judge Dufton (the Judge), following his conviction on his own plea to trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, (Charge 1), possession of Part 1 poison, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138, (Charge 2), and remaining in Hong Kong without the authority of the Director of Immigration, contrary to 38(1)(b) of the Immigration Ordinance, Cap 115, (Charge 3).

The agreed facts

2.  At around 11:33 am on 17 September 2020 the police raided Room No 3559, Flat A5 on the 3^rd Floor of Block A, Chungking Mansions in Tsim Sha Tsui.  The applicant was the only person found inside the room.

3.  The police executed a search warrant.  Underneath one of the beds the police found a black shoe box containing the following items:

(i)     One transparent re-sealable plastic bag containing 109 grammes of cannabis in herbal form;

(ii)     One transparent re-sealable plastic bag containing 7.30 grammes of a solid containing 3.71 grammes of cocaine;

(iii)     One transparent re-sealable plastic bag containing 3.54 grammes of a solid containing 2.91 grammes of 3, 4-methylenedioxymethamphetamine (“ecstasy”);

(iv)     One transparent re-sealable plastic bag containing 0.90 gramme of a solid containing 0.16 gramme of cocaine;

(v)     One black re-sealable plastic bag containing 0.69 gramme of a crystalline solid containing 0.69 gramme of methamphetamine hydrochloride (“ice”);

(vi)     One piece of paper containing traces of lysergide (“LSD”);

(vii)     One transparent re-sealable plastic bag containing twenty-eight tablets containing a total of 3.49 grammes of 3, 4-methylenedioxymethamphetamine (“ecstasy”); and

(viii)     One transparent re-sealable plastic bag containing six tablets and three tablet fragments containing tramadol, a Part 1 poison (a painkiller); one tablet and one tablet fragment containing a total of 0.25 gramme of ecstasy.

4.  The police also found in the shoe box one transparent re-sealable plastic bag containing sixteen black re-sealable plastic bags; two electronic scales; one transparent re-sealable plastic bag containing 0.83 gramme of a solid which did not contain any dangerous drugs and one tablet which did not contain any dangerous drug.

5.  Under caution the applicant stated, amongst other things, that he sometimes smoked the cannabis that was found in the black shoe box.  He came to Hong Kong in April 2020 having taken a flight from Pakistan to Beijing and then a connecting flight to Shenzhen after which he entered Hong Kong illegally. 

The mitigation

6.  The applicant was 38 years old at the time of sentence.  He is married and has 5 children ranging in ages from 3 to 16 years. It was submitted that he was illiterate and worked as a labourer in his home country of Pakistan.  He made a non-refoulement claim which had been turned down and an appeal in relation to that decision was pending.[1]

7.  It was submitted that he came to Hong Kong in April 2020 with the view to seek asylum, although he only filed his asylum claim after he had been arrested in September 2020.[2]  It was explained that the applicant first came to Hong Kong in 2009 when he made a claim for asylum. However, he was persuaded by his father to return to Pakistan in 2014.  He remained in Pakistan for 6 years before returning to Hong Kong, even though he claimed his life was in danger.[3] The applicant had two previous convictions for possession of a dangerous drug in December 2010, for which he was fined $500, and September 2012, for which he was sentenced to 2 months’ imprisonment suspended for 12 months and fined $1,000.[4] 

8.  It was submitted on the applicant’s behalf that after he arrived in Hong Kong he slept in the streets.  He befriended a fellow Pakistani called “Lucky”, who shared food and drugs with him.  On the day prior to his arrest, Lucky invited the applicant to sleep in his room and he told the applicant to wait for his instructions[5] to pass drugs to a person who would later visit the room.[6]  It was submitted that the applicant believed some of the MDMA and cannabis would be given to him by Lucky for his consumption.[7]

9.  Finally, it was submitted that the applicant was remorseful for what he had done and that he had pleaded guilty to the offences at the earliest possible opportunity.  The Judge was invited to take into account the circumstances of the case and give the applicant a lenient sentence.[8]

The reasons for sentence 

10.  The Judge had real reservations as to whether the role of the applicant was simply waiting for instructions so that he just happened to be the only person in the room by chance.  In any event, the Judge proceeded on the basis that the applicant was not a dealer and treated him no less seriously than a storekeeper in the trafficking hierarchy.[9]  He also found that there were no grounds to depart from the sentencing guidelines.

11.  Adopting the individual approach, the Judge found that the appropriate starting point for trafficking in 0.69 gramme of ice, 3.87 grammes of cocaine, 6.65 grammes of ecstasy and 109 grammes of herbal cannabis was 3 years and 3 months’ imprisonment, 3 years and 2 months’ imprisonment, 3 years and 3 months’ imprisonment and 4 months’ imprisonment respectively.

12.  Applying the absurdity test and treating all the narcotics as ice (except for the herbal cannabis), the Judge calculated that the starting point would be 7 years and 1 month’s imprisonment.  He considered therefore that the overall sentence should not be higher than 7 years and 1 month.[10]

13.  The Judge opined that the combined approach was appropriate and used 0.69 gramme of ice as the base drug.  He noted that by applying the conversion test, a sentence ranging between just under 4 years and just over 5 years would be arrived at depending on which drug was converted, while applying the ratio test, the overall starting point would be about 4 years and 8 months’ imprisonment.[11]

14.  Taking into account the foregoing factors and that the applicant had trafficked in three different types of drugs, the Judge increased the starting point for the ice of 3 years and 3 months’ imprisonment by 1 year and 9 months to 5 years' imprisonment.  The Judge did not increase the starting point by reason of the fact that the applicant was also trafficking in herbal cannabis.[12]

15.  The Judge refused to make any allowance that some of the herbal cannabis and MDMA was for the applicant’s personal consumption.[13]  The Judge gave the applicant the full credit for his plea of guilty and reduced the notional starting point of 5 years’ imprisonment by one third to 3 years and 4 months’ imprisonment.

16.  Of Charge 2, the Judge found that the proper starting point was 3 weeks’ imprisonment.  It was reduced to 2 weeks to reflect the applicant’s plea of guilty and it was ordered to run concurrently with the sentence for Charge 1.[14]

17.  Of Charge 3, the Judge sentenced the applicant to 15 months’ imprisonment in accordance with the sentencing guideline in R v So Man King [1989] 1 HKLRD 12.[15]

18.  Applying the totality principle, the Judge treated the unlawfully remaining charge as separate and distinct from the trafficking charge.  He found there were no strong humanitarian reasons not to order the sentence for the unlawful remaining charge to run consecutively to the concurrent sentences of the other two charges: HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710.  This resulted in a total sentence of 4 years and 7 months’ imprisonment.[16]

The grounds of appeal

19.  The applicant advances the following three grounds of appeal.

Ground 1:  the Judge erred in reaching the final sentence for Charge 1 by making an excessive upward adjustment to the starting point.

Ground 2: the Judge failed to take into account the applicant’s comparatively minor role involved in the offence and the general principle of totality.

Ground 3: the Judge should have ordered the sentence for Charge 3 to run wholly or partly concurrently to the other sentences. 

20.  Of Grounds 1 and 2, it is submitted that the sentence for Charge 1 was too high and failed to take into account the gravity of the offence and the role of the applicant to achieve an appropriate totality of the sentence: HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  It is contended that a relevant consideration was that the applicant had a relatively minor role in the offence and the total quantity of drugs involved was not great: HKSAR v Yu Wang-tim, unrep., CACC 191/2002, 15 August 2002. 

21.  As there was more than one type of dangerous drug being trafficked by the applicant it was necessary for the Judge to decide on the appropriate method for the calculation of the starting point.  Given the circumstances of the case, the Judge having considered and rejected the individual approach, decided on the combined approach.  For this purpose, he disregarded the quantity of herbal cannabis and the traces of lysergide, and assessed the applicant’s culpability on the basis he had trafficked in ice, cocaine and ecstasy.  He explained the basis of his sentence as follows:

“20. Applying what has been referred to as the ‘absurdity test’, having first excluded from the calculation the cannabis, a starting point of 9 years and 8 months’ imprisonment is clearly excessive for if all the drugs were ice the starting point based on quantity alone would likely be just under 7 years and 1 month imprisonment.

21. I am satisfied that the ‘combined’ approach to sentence is appropriate and take ice, the most potent drug albeit the smallest quantity, as the ‘base’ drug to calculate the starting point. Taking ice as the base drug I adopt a starting point of 3 years and 3 months’ imprisonment.

22. Again excluding from the calculation the cannabis, by applying the ‘conversion test’ a sentence ranging between just under 4 years and just over 5 years would be arrived at depending on which drug was converted. Applying the ratio test the overall starting point would be about 4 years and 8 months’ imprisonment.

23. Taking these matters into account in calculating a reasonable and realistic increase to the starting point together with the aggravating factor that the trafficking involved three serious dangerous drugs, ice, cocaine and ecstasy, I increase the starting point by 1 year and 9 months to 5 years’ imprisonment[17].  I do not increase the starting point by reason of the fact the defendant was also trafficking in cannabis.” 

22.  The Judge used ice as the base drug to calculate the starting point, which for the quantity of ice involved of 0.69 gramme was 3 years and 3 months’ imprisonment.  He had to make an upward adjustment to take into account the quantities of the other drugs, consisting of 3.87 grammes of cocaine and 6.65 grammes of ecstasy. He calculated the starting point by taking into account the three cross-checking tests, the absurdity test, the conversion test and the ratio test, and the aggravating factor that the trafficking involved three serious dangerous drugs.

23.  I can find no fault in the Judge’s sentencing approach, nor in the notional starting point that he determined was just and appropriate for Charge 1.  He assiduously applied the methodology under the combined approach as laid out in HKSAR v Islam SM Majharul [2020] 3 HKLRD 146.

24.  It is also complained that on the general principles of totality, the Judge should have further reduced the total sentence of 4 years and 7 months’ imprisonment.  The Judge addressed the totality of the sentences and I am unpersuaded that there was any basis for a reduction to the sentence for Charge 1 as determined by him.

25.  Of the unlawful remaining offence, it is submitted that the Judge should have ordered it to run wholly or partly concurrently to the concurrent sentences on Charges 1 and 2.  The sentence of 15 months’ imprisonment for the unlawful remaining offence was in accordance with the tariff in R v So Man King [1989] 1 HKLR 142, and took into account the applicant’s plea of guilty.  It was held in HKSAR v Kei San Man and Anor., unrep., CACC 246/1999, 10 September 1999, that sentences for immigration offences of a particular kind should normally be consecutive.  Keith JA, giving the judgment of the Court, said:

“… It has repeatedly been said that sentences for immigration offences of the kind committed by the Applicants should normally be consecutive: see, for example, Wong Ting Wa (CA 153/97) and Tong Fuk Sing (CACC 216/99). There were in this case no compelling circumstances, such as strong humanitarian reasons, which warranted either a reduction in the tariff or a departure from the rule that the sentence should usually be consecutive. …”

26.  Reliance is placed by the applicant on the Court of Appeal decision of HKSAR v Wang Dada, unrep., CACC 122/2020, 23 July 2021.  In that case, the appellant pleaded guilty to nine charges of burglary and one charge of unlawful remaining in Hong Kong.  The end result was that the judge sentenced the appellant to a total term of 50 months’ imprisonment for the burglary offences and ordered that the 15 months’ imprisonment for the unlawful remaining charge run wholly consecutively to that sentence, making a total sentence of 65 months’ imprisonment.  Based on an English translation provided by the respondent, the Court of Appeal held that this was the equivalent of adopting a notional starting point of 8 years and 2 months’ imprisonment which was manifestly excessive.  The Court ordered that 10 months of the sentence for the unlawful remaining charge should run consecutively to the reduced sentence of 48 months’ imprisonment for the burglary charges, making a total sentence of 58 months’ imprisonment.  It would appear that the Court was taking into account the totality principle in assessing the appropriateness of the sentence in that case.

27.  In a similar vein the Judge considered the overall totality of the sentence but decided that in the circumstances of this case the sentence for the unlawful remaining charge should run consecutively with the concurrent sentences of the other two charges.  The Judge cannot be criticised for the approach that he has taken in the sentence that he ultimately imposed upon the applicant. 

Conclusion

28.  For the reasons given, I do not find the grounds of appeal to be reasonably arguable, nor do I consider the sentence to be wrong or inappropriate in light of the circumstances of the case.  The applicant is refused leave to appeal against his sentence.

29.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1] Appeal Bundle (AB), 26B.

[2] AB, 19D-J.

[3] AB, 18K-19M. 

[4] AB, 51.

[5] AB, 46-47.

[6] AB, 41I.

[7] AB, 41G-42A.

[8] AB, 48.

[9] AB, 14O-Q.

[10] AB, 15L-O.

[11] AB, 15P-16E.

[12] AB, 16F-I.

[13] AB, 16N-17P.

[14] AB, 18C-F and 20L.  

[15] AB, I8G-19M.

[16] AB, 19Q-P.

[17] See HKSAR v Islam S M Majharul [2020] 3 HKLRD 146 at §27.