HKSAR v. MAHABUL ALAM KHAN

CACC 116/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 116 OF 2016

(ON APPEAL FROM HCCC NO 119 OF 2015)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.  The applicant sought leave to appeal against his conviction before Wong J on 18 April 2016, following a trial before a jury on a single count of trafficking in a dangerous drug, namely 238.57 grammes of cocaine narcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Upon his conviction, the applicant was sentenced to 13 years’ imprisonment. He further sought leave to appeal against sentence. On 22 August 2017, we reserved our judgment in respect of both applications and said we would give our decision in due course. This is our decision.

The prosecution case

2.  Shortly after midnight on 14 August 2014, the applicant was stopped and searched by police officers inside the staircase of a building at 202 Nathan Road.  When asked by one of the officers where he was living, the applicant replied in English “2^nd floor”.  The officers subsequently gained entry into Flat A on the 2^nd Floor (“Room A”) using two of a bunch of four keys found on the applicant.  Room A was searched and inside a refrigerator were found (i) in a red cardboard box labelled “women’s hipster”, 454.73 grammes of a solid and 13.78 grammes of a power, subsequently found to contain 238.57 grammes of cocaine narcotic, the subject matter of the indictment; and (ii) various prescription medicine packets with the applicant’s name printed on them.  The street value of the dangerous drugs seized was $481,160.

3.  The applicant was duly arrested.  His DNA and fingerprints were subsequently found on items seized inside Room A.  One of those items was a pillow case, which tested positive for the applicant’s DNA on two blood stains and a non-blood stained area.  Another item, a compact disc lying on a computer table, was found to have a thumb-print belonging to the applicant.

4.  The lady who was responsible for collecting rent, Madam Lo Lai Kuen (“Madam Lo”), identified the applicant as the person who on some occasions responded to her knocking on the door of Room A.  She testified that she had seen him about four times before.  In cross‑examination, she confirmed that she had not entered the room on each occasion that she received the rent.

5.  A rental receipt in the name of “Nazir Asif” was retrieved from the applicant’s wallet, which Madam Lo confirmed she had issued to the applicant.

The defence case

6.  The applicant did not avail himself of his right to testify on his own behalf, or to call witnesses.  Consequently, the defence case was put forward through cross-examination of the prosecution witnesses.

7.  It was suggested to the witnesses on behalf of the applicant that when the applicant was stopped by police officers outside 202 Nathan Road, he was holding a plastic bag which contained his prescribed medication and the compact disc, as well as six brass keys.  It was further alleged that the bunch of four keys and the rental receipt said to have been seized by the police from the applicant were not found on him.  It was put to the police witnesses that an officer had gone upstairs before the applicant was taken to the 2^nd Floor, and that when the applicant arrived at the 2^nd Floor, the door and gate to Room A had already been opened.  It was also suggested that the formal identification of the applicant by Madam Lo, at an Identification parade conducted on 22 January 2015, was mistaken.  With all these propositions, the prosecution witnesses disagreed.

Conviction and sentence

8.  The jury returned a unanimous verdict of guilty.  After hearing the background and antecedents of the applicant, the judge considered the guidelines in R v Lau Tak Ming & Others [1990] 2 HKLR 370 and adopted a starting point of 13 years’ imprisonment.  The judge found no mitigating factors, the applicant having pleaded not guilty but been found guilty after trial.  He also held that there was “no aggravating feature which calls for an enhancement in sentence”.[1] Accordingly, he passed a sentence of 13 years’ imprisonment.

Grounds of appeal against conviction

9.  The applicant averred the following home-made grounds of appeal in his Form XI Notice of application for leave to appeal (“Form XI Notice”):

(i) There were no fingerprints or DNA belonging to him on the dangerous drugs.  He was only a visitor to Room A, of which the owner was his friend.  Accordingly, his DNA may well have been left on the pillow; as for the compact disc, he was holding the item when he was stopped by police.  The judge had failed to direct the jury properly on these matters;

(ii) The keys to the room in question was not found on him nor did they bear his fingerprints or DNA.  He had been arrested on the street and taken straight to Room A.  He claimed that he was set up and the informant’s identity should have been disclosed.  The judge failed to give directions on these matters;

(iii) The police claimed that they had a search warrant, yet they never produced it.  The judge did not direct the jury on this matter;

(iv) Finally, the applicant queried why his friend, the owner of Room A, was not arrested or questioned.  Again, the judge said nothing to the jury about this.

10.  In a letter to the Court dated 11 July 2016, the applicant put forward other home-made grounds of appeal, complaining of the following matters:

(a) Despite his instructions, defence counsel (and the prosecution) did not adduce his “video-recorded statement” (which we take to be his video-record of interview) into evidence;

(b) Despite his instructions, defence counsel did not submit to the court that there were other keys within his property in Stanley Prison, and that the four keys could not therefore be his;

(c) Despite his instructions, defence counsel did not submit to the court that there were no contact numbers in his two mobile telephones seized by the police relating to: (i) drug dealers; (ii) the owner (landlord) of the room; and (iii) the person living in Room B, from whom the landlord sometimes collected the rent of Room A;

(d) The name on the rental receipt was “Nazir Asif”, not the applicant’s name, and there was no fingerprint or DNA finding linking him with the said receipt;

(e) A police officer testified that he could not find any lady’s garments in Room A, but the officer did not give his understanding of what he meant by women’s and men’s garments, and whether there were any men’s garments (such as vests and underwear) found in Room A.  Despite his instructions, defence counsel did not pursue the matter;

(f) Madam Lo accepted that she never went into Room A, but merely stood outside and talked to him.  The applicant queried: (i) how she could conclude that he lived in the room; (ii) how there could be several laundry bags of clothes if there was only one person living supposedly in the room; (iii) whether there were any of his fingerprints or DNA found in the “closed area” of the room?

Grounds of appeal against sentence

11.  Describing the sentence as “very excessive and heavy”, the applicant requested that it be reviewed and reduced.

Respondent’s submissions

12.  Mr Eddie Sean, on behalf of the respondent, submitted that the judge correctly and clearly directed the jury on the fingerprint evidence, the DNA evidence, and the way to approach matters of fact in the evidence.  He pointed out that the identity of any informant, the existence of a search warrant, the production of the applicant’s video-record of interview and the question of why his friend, the owner of Room A, was not arrested, were never issues in the trial.

13.  He contended that the summing-up was entirely balanced, as well as fair to the applicant; and there was no miscarriage of justice, nor irregularity in the trial.

14.  As for sentence, Mr Sean submitted that the sentence imposed was within the permissible range of the applicable guidelines in Lau Tak Ming, as applied to cocaine by the Court of Appeal in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69; and, therefore, neither wrong in principle nor manifestly excessive.

Consideration

15.  Clearly, the question of the applicant’s link with the premises where the drugs were found and his identity as someone who resided there were live issues in the trial.  As one would expect, therefore, they were placed firmly before the jury by the judge in his summing-up.  In respect of Madam Lo’s evidence linking the applicant to the premises, the jury were given an elaborate and entirely proper set of directions in accordance with the Court’s guidelines in R v Turnbull [1977] QB 224, in which the judge rehearsed the dangers of relying upon Madam Lo’s identification and directed the jury that only if they were sure of the accuracy and reliability of her identification could they take it into account: if they were not sure, then they must ignore her evidence of identification of the applicant.[2]  In any event, as the judge went on to note, the evidence of Madam Lo was “of little use in proving the guilt of the (applicant)”.[3]

16.  Rather more compelling perhaps was the DNA and fingerprint evidence directly linking the applicant with the premises where the drugs were found.  Given the complaint made about the judge’s directions on this aspect of the evidence, it is worth setting out the relevant directions of the judge in full:

“You will also recall that the Exhibit Officer had been cross-examined on why certain items had not been seized for the purpose of DNA testing. The witness has given you his explanation. Whether you are to accept his explanation and whether or not this matter will affect your assessment on the credibility of the witness is a matter for you. And whether or not you think the defence might have been put in a disadvantaged position, since no such evidence is available, is a matter for you. However, what you must not do is to speculate what would have been the result if DNA has been conducted. If there is no evidence, you must not speculate.”[4]

Later he said:

“Now DNA and fingerprint evidence; the prosecution produced DNA and fingerprint evidence against the defendant. If you believe in the evidence of PW3, the Exhibit Officer, the DNA and fingerprint evidence was found on certain items seized inside the bedroom. What weight you are to put on this aspect of the evidence is a matter for you.

You have heard that no such evidence however was found on the dangerous drug related exhibits. If there is such evidence against the defendant, you may think that it is evidence against him. If DNA or fingerprint of other persons was found on the drug-related exhibit, then depending on circumstances, it may exonerate the defendant. Under both circumstances such evidence can be of substantial importance.

Now it is a case where there is no such evidence on the dangerous drug related exhibits. You may think that it is easy to leave DNA on an item if one handled it personally or had engaged in its packing with bare hands. Now in the Admitted Facts the circumstances in which fingerprint may or may not leave on an item are stated. You may wish to read that part of the Admitted Facts carefully.

…

In the circumstances of the present case how much weight you are to put on the fact that there is no DNA nor fingerprint evidence on the dangerous drug related exhibits is a matter for you.”[5]

Finally, he commented:

“…In consideration you must also bear in mind that the DNA and fingerprint evidence do not tell you at what time and under what circumstances such evidence was left on the items and they do not tell at what time and under what circumstances the pillow and the CD were put in the room.

In this regard, Ms Crebbin submitted to you that a pillow is not something a visitor will usually bring to a place he visits. She also reminded you that the items on which DNA and fingerprint were found were located in the bedroom showing that the defendant would not have been a casual visitor – if he is only a visitor. Whether you are to agree to counsel’s view is a matter for you and whether the submission of Ms Crebbin is to help you in your decision is a matter for you.”[6]

17.  In our judgment, these were entirely full and fair directions in respect of (i) the relevance of the absence of any DNA and fingerprints from the dangerous drug exhibits themselves; as well as (ii) the potential significance of the presence of DNA and fingerprints on items linking the applicant to the premises.  The absence of fingerprints in cases such as this has been described by this Court as “a neutral factor”: see HKSAR v Law Wing Hong (CACC 169/1998, unreported, 11 November 1998) at p 8; HKSAR v Pham Thi Nga (CACC 224/2011, unreported, 16 July 2012), at para 40.  The same may be said of the absence of DNA evidence: see HKSAR v Tsuchiya Koji [2015] 6 HKC 463, at 471I.  Contrary to the applicant’s contentions, the relevance of the presence or absence of the applicant’s DNA and fingerprints were properly and fully placed before the jury.

18.  In respect of the absence of the applicant’s DNA or fingerprints from the keys (or, for that matter, the rental receipt) which the police claimed were found upon him, this was similarly neutral evidence, which did not call for any direction from the judge.  In any event, it was an admitted fact that fingerprints could only be identified if they were clear and complete enough to have sufficient ridge characteristics to be compared with a known fingerprint.  They were not automatically left on every type of surface and could be removed by wiping.  Nevertheless, the judge reminded the jury that the defence disputed that the keys to the premises were found on the applicant and urged them to “be very careful in assessing the credibility of the police witnesses” on the issue.[7]

19.  Complaint is further made that the search warrant, which the police officers claimed was in their possession, was never produced to the jury, nor were the jury given any directions on the matter.  However, it was an admitted fact that the relevant drug exhibits were seized from Room A by the police.  The short answer, therefore, is that the search warrant did not have to be produced, unless either side requested its production for some relevant purpose; which evidently they did not.  Furthermore, no direction was required to be given to the jury on this matter.

20.  The applicant raised certain other matters, which were in fact placed before the jury as supportive of his defence.  It was submitted, for example, that since the drugs and equipment were found in a box labelled “women’s hipster”, the police officers had failed to seize other women’s clothing and footwear found in Room A, which might have tended to suggest that a woman also used the room and may, therefore, have been responsible for the drugs.  It was also contended that the applicant was clean-shaven when arrested, yet no razor, from which DNA might have been obtained, was found in Room A.  The judge reminded the jury of these points in his summing-up[8] and, clearly, they were being invited to consider these matters as supportive of the defence being advanced.

21.  It was also put on the applicant’s behalf at trial that he had informed police officers that he lived in premises in Yiu Chow Street and that he was not in possession of any keys to the premises on the 2^nd floor of 202 Nathan Road.  Instead, he was in possession of six other keys which had nothing to do with 202 Nathan Road.  This controversy was gone into in detail by both counsel in their closing addresses[9], as well as dealt with as part of his summary of the evidence by the judge.[10]  There is nothing in this point.

22.  Next, the applicant queried why his friend, the owner of the room was not arrested or questioned.  Again, he did not have to be.  If some issue derived from the police failure to arrest or question him, that was a matter to be explored at trial, not before this Court.

23.  Finally, the applicant raised a series of other factual issues and queries as to why certain matters were not explored in evidence, or produced as part of his defence (such as the applicant’s video-record of interview).  These were all questions of judgment for his experienced counsel at trial and were clearly within counsel’s remit in determining how to conduct the defence.  They are not issues for this Court, nor do they cause us to have the slightest concern about the correctness of the verdict.  In our view, the evidence linking the applicant not only to the premises but also to residing in those premises was overwhelming.

24.  Quite apart from the applicant’s DNA material found on a pillow and his fingerprint on the compact disc, his possession of the keys to the premises and Madam Lo’s identification of the applicant as the person from whom she collected rent and to whom she gave the rental receipt found in his wallet, we have not mentioned the highly compelling fact that bags of prescription medicine with the applicant’s full name printed on them were found in the refrigerator adjacent to the dangerous drugs.  That such personal items were stored in the refrigerator was highly probative of the fact that the applicant was no mere visitor to, but actually resided in, Room A.

25.  It must be remembered that there was no evidence forthcoming from the applicant to undermine, contradict or explain any of the evidence put forward by the prosecution, or the inferences to be drawn from that evidence.

26.  We reject all of the applicant’s complaints. There was nothing unsafe or unsatisfactory about this verdict in circumstances where the evidence was compelling and the summing-up not only extremely comprehensive but entirely fair to the applicant.  The application for leave to appeal against conviction is refused.

Appeal against sentence

27.  Before embarking on the appeal against sentence, we specifically reminded the applicant of the powers of this Court on an appeal against sentence to increase that sentence under section 83I(3) of the Criminal Procedure Ordinance, Cap 221, if it considered that the appellant should be sentenced differently.  Although there was already a specific ‘Note’ warning the applicant on his Form XI Notice, which he signed on 3 May 2016, that “on an appeal against sentence, the Court of Appeal has power under section 83I of the Criminal Procedure Ordinance to either increase or reduce the sentence”, we felt it appropriate that he should be reminded of the Court’s power in this regard.

28.  Notwithstanding the warning, the applicant insisted that he wished to proceed.  However, he had nothing effectively to add to his general ground of appeal against sentence that it was “very excessive and heavy”.

Consideration

29.  The reason which prompted us to warn the applicant of the Court’s powers on appeals against sentence was that, notwithstanding the status of the applicant as a Form 8 recognizance holder and a non-refoulement claimant, the judge found that there was “no aggravating feature which calls for an enhancement in sentence”.  With respect, we consider that the judge was in error in so finding and appeared to ignore a consistent line of authority to the effect that if a non-refoulement claimant, who is permitted to remain in Hong Kong and be at liberty whilst his claim is being determined by the authorities, engages in a serious crime aimed at the very community which has granted him that privilege, and if such crime has the effect of tarnishing Hong Kong’s reputation for order and security, then that is a factor capable of aggravating the seriousness of his offence: see HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206, at para 21; HKSAR v Norena Gutierrez Cristhian Andres (CACC 319/2014, unreported, 30 April 2015), at para 27.

30.  In HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, at para 30, this Court repeated this principle and added, at para 32:

“It seems to us undeniable that the trafficking of cocaine by people who are not normally entitled to be in Hong Kong but are licensed to remain at liberty in the community while their various claims for asylum are being processed, not only affects the community at large but has an obvious and significant impact on the reputation of this city. The Judge was plainly right to regard the applicant’s offence as a serious breach of the trust and privilege extended to him by the people of Hong Kong.”

Although the judgment in Shah Syed Arif was delivered shortly after the sentence in this case was handed down, it did no more than repeat the principle articulated in Sandagdorj Altankhuyag and Norena Guttierez Cristhian Andres, whilst making the obvious point that offences of drug trafficking are precisely the sort of crimes which engage the principle.  We note that in Shah Syed Arif, the trafficking offence concerned 55.88 grammes of cocaine narcotic valued at just over $145,000.  The quantity in the case before us is 238.57 grammes of cocaine narcotic worth just over $480,000.  In Shah Syed Arif, the Court considered an enhancement of 1 year for this factor appropriate: as we have said, it did not appear to have been regarded as an aggravating feature at all by the judge when sentencing the applicant in the present case.

31.  We wish to stress the importance of consistency in sentences where drug trafficking offences are concerned.  That is why this sphere of criminal sentencing, more so than any other, is governed by a myriad of sentencing guidelines dealing with different drugs, their quantities and the relevant aggravating features which should apply.  When judges, for no good reason, depart from those guidelines and ignore or disregard a recognised aggravating feature of sentencing, other defendants in other cases where the aggravating feature was applied may well wonder, incorrectly but understandably, why they have been dealt with more harshly.  Indeed, it is a constant refrain of applicants before this Court that the individual applicant has been dealt with more severely than another in respect of a similar quantity of dangerous drugs.

32.  In Shah Syed Arif, we commented, at para 33, that:

“… this Court has been concerned for some time by what appears to us to be the increasing prevalence of serious crimes being committed by non-refoulement claimants, in particular torture claimants. That is apparent from the weekly diet of appeals which routinely come before this Court. [Prosecuting counsel] has confirmed that the Department of Justice is similarly concerned by this trend. So that the courts are properly advised as to the extent of the problem, if it be a problem, we have requested through [prosecuting counsel] that statistics be provided by the Department of Justice at some suitable opportunity in the future as to the number and types of crimes being committed by non-refoulement claimants in Hong Kong.”

Since this case appeared to present an opportunity to present those statistics to the Court, we adjourned the matter for Mr Sean to produce the evidence to which we had referred.

33.  When the hearing resumed, we received evidence from two witnesses, pursuant to section 83V of the Criminal Procedure Ordinance: Ms Peggy Yung Pik Har, an assistant Principal Immigration Officer of the Immigration Department; and Ms Julia Chan Wing Kwan, a Senior Inspector of Police.  We are grateful to them both for the valuable assistance they provided to this Court.

34.  Ms Yung, whose responsibilities include the removal of foreign nationals who have committed immigration offences in Hong Kong, was able to detail the case history of the applicant since his arrival from the Mainland through the Lo Wu Control Point on 1 November 2006.  Having been permitted to remain as a visitor until 15 November 2006, the applicant did not leave Hong Kong and overstayed until 3 March 2007, when he was arrested by the police for overstaying and referred to the Immigration Department.

35.  On 21 March 2007, it was confirmed by the United Nations High Commissioner for Refugees (“UNHCR”) that the applicant had lodged a claim for asylum.  Accordingly, the applicant was issued with a Form 8 recognizance document by the Director of Immigration, under section 36 of the Immigration Ordinance, Cap 115, and released into the community on 14 April 2007.

36.  Thereafter, the applicant committed four separate offences:

(i)   the sale, or possession for sale, of goods to which forged trademarks had been applied, contrary to section 9(2) of the Trade Descriptions Ordinance, Cap 362, for which he was sentenced to 2 months’ imprisonment;

(ii)  possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, for which he was sentenced to 2 weeks in prison suspended for 18 months;

(iii)  possession of dangerous drugs, for which he received a sentence of 3 weeks’ imprisonment plus 1 week for breach of the suspended sentence in (ii); and

(iv)  possession of dangerous drugs, for which he was sentenced to 6 months’ imprisonment.

Following each period of imprisonment, the applicant was released back into the community, on the strength of his possession of a Form 8 recognizance as a non-refoulement claimant.

37.  Following his second conviction, the Director of Immigration made a Removal Order against the applicant on 11 August 2010, pursuant to section 19(1)(b) of the Immigration Ordinance.  Although the applicant did not appeal the Removal Order, his removal from Hong Kong was withheld pending determination of his non-refoulement claim.

38.  As we have seen, the UNHCR confirmed that the applicant had filed a claim for asylum in March 2007.  On 26 April 2011, the UNHCR informed the Immigration Department that his claim had been “closed” on 28 February 2009.  Ms Yung was understandably at a complete loss to explain why it should have taken the UNHCR an astonishing two years and two months to inform the Immigration Department of their decision of February 2009.  However, it would seem that the UNHCR must have informed the applicant of the decision rather earlier for, on 28 January 2011, the applicant lodged a torture claim with the Immigration Department.

39.  Two years later, on 31 January 2013, a Notice to sign a completed torture claim form was served by an Immigration Officer on the applicant for him to sign, in accordance with section 37Y(2) of the Immigration Ordinance.  However, inexplicably, he refused to receive or sign the document. As a result, the torture claim was deemed withdrawn on 6 March 2013, pursuant to section 37ZG of the Ordinance.  Ms Yung was obviously unable to explain why the applicant should have refused to acknowledge a torture claim form in respect of the very application he was himself making, but she did say that in her experience this was not unusual on the part of those claimants who wished to delay the processing of their applications for as long as possible.  The applicant thereafter continued to remain at liberty in the community by virtue of his Form 8 recognizance.

40.  As to why it took the Immigration Department 2 years between the filing of the torture claim by the applicant on 28 January 2011 and the serving of the torture claim form on the applicant on 31 January 2013, Ms Yung candidly conceded that the Immigration Department were simply swamped with such torture claims and were only able at that time to refer 4 cases per day to the Duty Lawyer Service, which was itself under severe manpower constraints.  That has since improved to 15 cases per day.  We note from the judgment in HKSAR v Vu Thang Duong [2015] 2 HKLRD 502, in which case evidence was received on the matter by Zervos J, that as at March 2015, there were some 9,500 outstanding non-refoulement claims, of which 7,893 had been referred to the Duty Lawyer Service.[11]

41.  In any event, on 12 July 2013, the applicant raised a new claim, this time for Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”).  We understand that this claim is still being processed.

42.  The applicant would have remained at liberty in the community pursuant to his Form 8 recognizance pending his new claim had not the events of the present case intervened.  On 14 August 2014, he was arrested for trafficking in a dangerous drug, after which he remained in custody pending trial.  On 18 April 2016, the applicant was sentenced to 13 years’ imprisonment.

43.  We are now informed that the current practice of the Immigration Department when an applicant has been sentenced to a lengthy period of imprisonment is to resume consideration of his or her application 9 months before his or her scheduled discharge.  This time is deemed sufficient for the Immigration Department and, if necessary, the Torture Claims Appeal Board to perform their respective functions.

44.  The above chronology presents a deeply depressing, but to this Court all too familiar, pattern of prevarication and delay.  We have already commented, firstly, on the astonishing delay of 2 years and 2 months it took the UNHCR to inform the Immigration Department that the applicant’s asylum bid had been refused and the case closed.  Yet, during that time, the community had to suffer the applicant committing three separate offences of selling goods with forged trademarks (on 3 June 2009) and possession of dangerous drugs (on 19 October 2009 and 6 April 2011), in respect of all of which offences he was ultimately sent to prison.  Then, secondly, there was the further delay of 2 years before the Immigration Department were able, such was their workload in respect of such claimants, to refer the matter to the Duty Lawyer Service, but which ultimately culminated in the applicant’s torture claim being deemed withdrawn.  During that period, the applicant was again convicted of possession of dangerous drugs, for which he was sent to prison for six months.  And, finally, 13 months after filing his CIDTP claim, the applicant was arrested for trafficking in no less than 238.57 grammes of cocaine narcotic, for which he was sent to prison for 13 years.

45.  If we may comment on the current practice of the Immigration Department to hold these applications in abeyance during an applicant’s term of imprisonment until 9 months before his scheduled release, we do not see why, in principle, these claims cannot be investigated and litigated to finality, including any judicial review procedures, which seem to follow in many cases from the decision of the Torture Claims Appeal Board on appeal from the decision of an Immigration Officer, whilst the applicant is serving his prison sentence.  In addition, regard must be had to the delays experienced in obtaining from the relevant country concerned a new travel document to enable the failed applicant to be deported, once he has exhausted all avenues open to him.  We are informed, depending on the country concerned, that this may take up to six months.  We do not see why the public should have to continue to suffer an applicant being foisted back on the community and at liberty to commit further crimes, sometimes very serious ones, while the legal processes and other procedures splutter back into life and grind haltingly to a conclusion.

46.  In our judgment, while 9 months may be deemed sufficient time for the Immigration Department and, where necessary, the Torture Claims Appeal Board to fulfil their roles, it does not cater for further contingencies, such as recourse to the Judicial Review process before the courts.  We cannot see why a claimant should not know finally and conclusively where he stands by the time he has completed his prison sentence, particularly where it is a long prison sentence.

47.  That any applicant should be in the system having his various claims dealt with for years on end is deplorable enough. But where one claim after another is mounted, so that the applicant who makes them can remain free in the community to commit serious crimes in the confident expectation that the authorities will take years to come to any final decision, it is a public scandal.  We are informed that there are currently some 14,000 Form 8 recognizance holders in Hong Kong, of whom some 8,000 are pending assessment by the Immigration Department; 5,000 are awaiting appeal hearings before the Torture Claims Appeal Board; and a further 1,000 are pending other hearings such as prosecutions or Judicial Review related hearings.  Most of this figure of roughly 14,000 will be at large in the community.  However, included in the last category of some 1,000 Form 8 recognizance holders will be those serving prison sentences, such as the applicant.  Meanwhile, an additional 800 Form 8 recognizance holders are waiting to be removed, their claims having been determined and rejected.

48.  In 2016, there were some 1000 new applicants per quarter.  We take some comfort from the fact that since the implementation by the Immigration Department of the Unified Screening Mechanism (“USM”) on 3 March 2014, all non-refoulement claims will now be screened under a single system, which will hopefully significantly reduce the time in which these applications will be processed.

49.  As for the prevalence of criminal offences being committed by Form 8 recognizance holders and non-refoulement claimants, we also received evidence from Ms Chan, on behalf of the Hong Kong Police Force, which made equally unpalatable reading.  Using statistics compiled by the Criminal Intelligence Bureau, she was able to show that the incidence of all criminal offences for which non-ethnic Chinese defendants[12] in possession of a Form 8 recognizance had been arrested by the police had risen from 608 offences in 2013 to 1506 offences in 2016.  The total number of non-ethnic Chinese defendants in possession of a Form 8 recognizance arrested in 2013 was 4086: by 2016, it had risen to 4703.  Looking at the specific crime of trafficking in dangerous drugs committed by non-ethnic Chinese defendants in possession of a Form 8 recognizance, there were 48 such offences recorded in 2013: by 2016, that number had risen to 126 offences.  The first six months of 2017 suggest a further increase of 12% in the prevalence of the offence of trafficking in dangerous drugs committed by such defendants over the same period in 2016.

50.  We should caution that the above statistics deal only with police arrests (not arrests made by other law enforcement agencies), and not with convictions, for which this Court had requested specific figures in Shah Syed Arif.  Those will need to be arranged and provided in a suitable case in the future.  Furthermore, the figures relate to all non-ethnic Chinese defendants in possession of a Form 8 recognizance, not just non-refoulement claimants.  Nevertheless, we are persuaded that the figures referred to by Ms Chan are a useful general indicator of the scale of the problem and we note that, between January 2017 and June 2017, the police arrested (in respect of all criminal offences) 713 non-ethnic Chinese defendants in possession of a Form 8 recognizance, of whom 588 (or about 82.5%) had lodged non-refoulement claims.  We agree with Ms Chan that the remaining 17.5% of Form 8 recognizance holders will for the most part comprise those who have not yet lodged a non-refoulement claim.

51.  We wish to make clear that it is not our purpose to cast doubt on the genuineness of those who are making non-refoulement claims in Hong Kong.  That determination is for others to make in accordance with established principles of law.  What we are concerned about, and have been for some time, is the growing incidence of serious crimes, of which drug trafficking is obviously one, being committed by people who are permitted to remain at liberty in the community (and be supported by the community) for years on end while their claims are being processed.  It is not fair on the people of Hong Kong, who have extended to them the privilege of remaining on the streets of this city while their claims are being examined, only to be rewarded with crimes which not only impact on ordinary people but affect the reputation of Hong Kong as a whole.  It is not fair on genuine claimants who must wait patiently while those whose real intention is to remain in Hong Kong, and “play the system” as long as they can on any pretext, are processed.  And it is of no assistance to the claimant himself, for the simple reason that, in the context of dangerous drugs offences, no third country is going to be particularly enthusiastic about admitting any refugee, even if successfully screened in on some basis, with a history of drug addiction and/or drug trafficking in the place which has given him temporary sanctuary.

52.  We also wish to make clear that none of what we say as a result of the evidence we have heard is intended to influence the outcome of the applicant’s own non-refoulement claim, nor does it affect the course we consider appropriate in respect of the sentence on this applicant.  Although his claim for asylum was rejected by the UNHCR as long ago as 28 February 2009, and despite his apparent refusal (for reasons unknown) to proceed with his own torture claim by acknowledging the torture claim form on 31 January 2013, the applicant will be dealt with by due process of law in accordance with established principles of justice and fairness.  However, given the length of time his various applications have taken thus far, the community is entitled to expect a proper resolution of, and finality to, his position by the time he completes his sentence, which is several years away.  By the time of his existing scheduled release date, assuming good behaviour, he will have been in Hong Kong for well over 16 years.

53.  To the applicant’s appeal against sentence we now return.  As we have already observed, the judge considered there was no aggravating feature attendant upon the applicant’s commission of this offence. In this regard, for the reasons earlier discussed, he was with respect in error.  It was a significant factor in aggravation of the offence that the applicant was a Form 8 recognizance holder and non-refoulement claimant at the time he trafficked in 238.57 grammes of cocaine.

54.  The quantity of cocaine narcotic in which the applicant was trafficking, on a strictly arithmetical approach of quantity to the relevant guideline in Lau Tak Ming, as applied to cocaine by the Court in Pedro Nel Rojas, would have produced a starting point after trial of almost exactly 12 years and 7 months’ imprisonment.  The judge adopted a starting point of 13 years’ imprisonment for reasons which are not clear, especially as he apparently considered that there were in fact no aggravating features.  That was not the correct approach to sentence, and in our view the sentencing exercise miscarried: see HKSAR v Smit Hector Edward [2017] 1 HKLRD 287, at para 26.

55.  In our judgment, the starting point in respect of the quantity of cocaine in which the applicant was trafficking should have been 12 years and 7 months’ imprisonment.  For the serious aggravating feature that the applicant was at the time of the commission of the offence a Form 8 recognizance holder and a non-refoulement claimant, who was entitled to remain at liberty in the community but expected to be law abiding while his claim was being processed, we consider that the judge should have increased the starting point by 15 months; taking the sentence after trial to 13 years and 10 months’ imprisonment.

56.  There was, as the judge found, no mitigation, the applicant having pleaded not guilty but been found guilty after trial. Accordingly, the ultimate sentence passed on the applicant should have been 13 years and 10 months’ imprisonment.  As we have indicated, we specifically warned the applicant of our powers under section 83I(3) of the Criminal Procedure Ordinance before he embarked on his appeal against sentence, powers of which he should already have been aware when he signed his Form XI Notice.  Yet he insisted on going ahead.  He has given no valid reasons for saying that his sentence is manifestly excessive and his appeal was wholly without merit. Moreover, it was pursued notwithstanding that the judge failed to enhance his sentence when it was clear from the evidence that the applicant was a Form 8 recognizance holder[13], and when the judge specifically referred in sentencing to the fact that the applicant was a non-refoulement claimant.[14]

Conclusion

57.  Accordingly, since the appeal against sentence has no merit whatsoever, we refuse leave to appeal against sentence, but, being satisfied that the applicant should be dealt with more severely than he was dealt with in the court below, we exercise our powers under section 83I(3) of the Criminal Procedure Ordinance and substitute for the applicant’s sentence of 13 years’ imprisonment, a sentence of 13 years and 10 months’ imprisonment.

[1]  Appeal Bundle, p 60K-L.

[2]  Appeal Bundle, pp 28H-30E.

[3]  Appeal Bundle, p 30D-E.

[4]  Appeal Bundle, p 23M-S.

[5]  Appeal Bundle, pp 30E-31A.

[6]  Appeal Bundle, p 48G-M.

[7]  Appeal Bundle, p 49B-D.

[8]  Appeal Bundle, pp 49L-50E.

[9]  Prosecuting counsel’s speech at Appeal Bundle, pp 75G-76C; Defence counsel’s speech at Appeal Bundle, pp 107H-108D.

[10] Appeal Bundle, p 35G-P.

[11] ibid., at para 12.

[12] For the purpose of police classification in this context, non-ethnic Chinese are defined as defendants whose nationality is not Chinese (which includes defendants from Taiwan and the Macao SAR).

[13] Appeal Bundle, p 34B-C.

[14] Appeal Bundle, p 60A-B.