HKSAR v. MOHAMMED IMRAN

CACC 16/2019

[2019] HKCA 719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 16 OF 2019

(ON APPEAL FROM HCCC 213 OF 2017)

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REASONS FOR JUDGMENT

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1.  The applicant was convicted on his own plea before Wong J (“the judge”) of one count of “Trafficking in a dangerous drug”, namely 168 grammes of a solid containing 132 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 27 December 2018, the judge sentenced the applicant to 7 years’ imprisonment.

2.  The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his sentence, at the hearing of which he appeared in person. After hearing from the applicantI refused his application and said I would hand down my reasons for doing so at a later date. This I now do.

The Summary of Facts

3.  In pleading guilty to the charge, the applicant agreed to a Summary of Facts which revealed that at about 22:20 hours on 14 September 2016, police officers on an anti-crime patrol approached the applicant and identified themselves with a view to searching him. The applicant then fled. The officers pursued the applicantand eventually subdued him. When they searched him they seized from the front right pocket of his jeans a black plastic bag containing seven transparent, re-sealable plastic bags which contained the dangerous drugs the subject of the charge. These dangerous drugs had an estimated retail value of HK$196,915. 

4.  In a subsequently conducted cautioned video record of interview the applicant claimed that he had been given the dangerous drugs at about 9 pm that day by a man named “NOOR” and asked to deliver them to another person.

The mitigation

5.  The applicant’s counsel informed the court that the applicant was 28 years of age at the time of sentence, had a clear record and was of Indian nationality. He arrived in Hong Kong in August 2015 on a visa but had overstayed and since sought asylum. He was a Form 8 holder.

6.  The applicant’s counsel informed the court that the applicant had been offered $500 to deliver the dangerous drugs from one place to another and emphasised that he was acting as no more than a simple courier in the drug trade.

7.  His counsel submitted to the judge that the quantity of cocaine would warrant a starting point of around 10 years and that the enhancement of that starting point to allow for the aggravating feature of the applicant being a Form 8 holder, should be no more than 6 months. 

The judge’s Reasons for Sentence

8.  In determining the applicant’s sentence, the judge directed himself in accordance with the Court of Appeal’s judgments in AG v Pedro Nel Rojas[1]and R v Lau Tak Ming & Another[2]. From the judgment in Lau Tak Ming, he derived the sentencing guideline that for trafficking in cocaine with a narcotic content of 50 to 200 grammes the sentence should be in the range of 8 to 12 years’ imprisonment. Applying this sentencing guideline he adopted an initial starting point of 10 years’ imprisonment.

9.  In considering the aggravating feature of the applicant being a Form 8 holder at the time of the offence the judge directed himself in accordance with the Court of Appeal’s judgments in HKSAR v Shah Syed Arif [3], HKSAR v Norena Gutierrez Cristhian Andres[4]and HKSAR v Ali Saif [5]and enhanced his starting point by 12 months.

10.  In addition to the one-third discount for the applicant’s guilty plea, the judge allowed the applicant a further discount of 4 months for his assistance to the police.

11.  The judge thereupon imposed on the applicanta sentence of 7 years’ imprisonment.

The applicant’s grounds of appeal

12.  In his Form XI filed on 18 January 2019, the applicantexpressed only his intention to appeal his sentence and to apply for legal aid[6]. He did not articulate any ground of appeal and has not filed any submission with the court identifying his complaint.

13.  At the hearing, however, he asked the court to award him a greater discount for the assistance he provided to the authorities.

Discussion

14.  No complaint is made in respect of the starting point of 10 years’ imprisonment and nor could it. For the amount of cocaine in which this applicant trafficked the starting pointis entirely in accordance with the guidelines laid down by the Court of Appeal, recently re-affirmed and further explained by the court in HKSAR v Kilima Abubakar Abbas[7] as applying to couriers.

15.  Nor can the applicant have any complaint that his sentence was enhanced by reason of him being a Form 8 holder at the time of the offence. This is completely in accordance with Court of Appeal authority that is binding on the judge.

16.  Nor is it reasonably arguable that the amount of the enhancement is excessive. This is a matter for the judgeto determine in the application of his sentencing discretion to the facts and circumstances of the particular case and particular offender before him.

17.  In HKSAR v Singh Gursevak[8]the Court of Appeal distilled from existing authority guiding principles to assist judgesin coming to an appropriate enhancement for Form 8 holders.

18.  Applying these guiding principles to the substantial amount of cocaine found on the applicant and having regard to the importance of his courier role, lowly as it may be, in the distribution of dangerous drugs within Hong Kong, together with the undisputable prevalence of drug offences in Hong Kong, I am of the view that it is not reasonably arguablethat an enhancement of 12 months in these circumstances is excessive, let alone manifestly excessive.    

19.  Miss Lam has fully informed the court of the extent of the applicant’s assistance to the police and of the reasons why, on legal advice, no prosecutions eventuated. The applicant falls into the category of a person who genuinely seeks to assist the police but whose information, though not necessarily false or wrong, is insufficient for the purpose of initiating a prosecution. The reduction of 4 months that was awarded by the judgein effect resulted in a total discount of 36.36% being given to the applicant. As Miss Lam pointed out, 33.3% to 40% discount was recently upheld by the Court of Appeal in HKSAR v Godson Ugochukwu Okoro[9]as appropriate where a defendant has made a genuine attempt to assist the authorities and the assistance has been helpful but not of particularly great value.

20.  In my view it is not reasonably arguable that the additional discount granted by the judgeto the applicant was inadequate as it was in line with the relevant authorities.

21.  It follows, therefore, that in my view it is not reasonably arguablethat the final sentence of 7 years is manifestly excessive.

Disposition

22.  For these reasons I refused the applicant leave to appeal his sentence.  I reminded him of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.