HKSAR v. ISLAM SHAFIQUL

CACC 210/2019

[2020] HKCA 871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2019

(ON APPEAL FROM HCCC 322/2018)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The appellant faced a joint charge with Molla Rasidul (D1) of trafficking in dangerous drugs, contrary to section 4(1)(a) and 3 of the Dangerous Drugs Ordinance Cap 134. On 13 March 2019 the appellant appeared before Deputy High Court Judge Woodcock (“the judge”) and confirmed his plea of guiltywhile D1 pleaded not guilty and was convicted after a trial in which the appellant testified for the prosecution. On 19 June 2019 the judge sentenced D1 to 11 years and 9 months’ imprisonment and the appellant to 6 years and 6 months’ imprisonment.

2.  On 19 May 2020 the appellant was granted leave by the single judge[1]to appeal against his sentence. Leave was granted on two grounds. First, the judge erred in not giving the appellant a 50% discount for having acted as a prosecution witness at the trial of D1. Secondly, after the sentence was imposed on 19 June 2019, it came to the knowledge of the parties that on 11 April 2019 the appellant had pleaded guilty to an altogether separate offence of remaining in Hong Kong after landing here without lawful authority. As a consequence, the appellant was brought back before the judge on 2 July and on this occasion she purported to exercise her power under the slip rule to re-sentence the appellant. Her conduct in so doing gave rise to the second ground on which leave to appeal was granted, namely, whether the judge had jurisdiction to resume the hearing of the appellant’s case on 2 July when she purported to re-sentence him.

3.  At the hearing of the appeal we allowed it, set aside the sentence of the judge and sentenced the appellant to 6 years 3 months’ imprisonment, 6 years of which we ordered should be served consecutively to, and 3 months concurrent with, the sentence imposed on him for the unlawful remaining offence. These are our reasons for doing so.

The background to the offence

4.  The Summary of Facts which was used for the purpose of sentencing the appellant revealed that on 10 July 2017 the police apprehended the appellant as he was leaving Room 1 of Flat E6 on the 5^th floor of Chunking Mansions. Inside Room 1 the police found:

(a) 55.60 grammes of methamphetamine hydrochloride (“Ice”);

(b) 60.63 grammes of cocaine;

(c) 0.04 gramme of cocaine in 28 pieces of blotter paper;

(d) 0.12 gramme of ketamine;

(e) 0.77 gramme of heroin hydrochloride;

(f) 184.38 grammes of cannabis resin;

(g) 34.28 grammes of herbal cannabis;

(h) 4.85 grammes of chloroethcathinone in 34 tablets;

(i) 3.10 grammes of 3,4-methylenedioxymethamphetamine (MDMA);

(j) 0.03 gramme of methamphetamine and 0.52 gramme of MDMA;

(k) 3.51 grammes of MDMA in 36 tablets;

(l) one electronic scale;

(m) 182 empty resealable plastic bags;

(n) cash of HK$36,170;

(o) one notebook containing suspected drug transaction records; and

(p) two pieces of paper, with handwriting on both sides, containing suspected drug transaction records.    

5.  The estimated value of all the drugs found was HK$126,000. It was admitted that the appellant’s fingerprints were found on the note book and the two pieces of paper that are described at (o) and (p) in the preceding paragraph.

The mitigation

6.  At the hearing on 19 June 2019 the appellant’s counsel informed the court that the appellant was 32 years old and was a Form 8 recognizance holder from Bangladesh, having arrived in Hong Kong in 2016. He had a conviction for trafficking in cannabis in January 2017 for which he had been sentenced to 3 months’ imprisonment. It was accepted by the defence that the only mitigating factors were the appellant’s timely plea, and the assistance he rendered in testifying for the prosecution in the trial of D1.

7.  In the course of the hearing the following exchange took place between the judge and Mr James Sherry, the prosecuting counsel, in respect of the appellant’s assistance:

“COURT: Mr Sherry, any comment on the assistance?

MR SHERRY: Yes, well, I think that it’s fair to say that he certainly did come up to proof and he was a no-nonsense witness. He may have done so at great personal risk, so I think whatever discount you find appropriate he’s certainly earned, thank you.”[2]

8.  In respect of the discount that the appellant should receive for this assistance his counsel said to the judge:

“…there are authorities, my Lady, which seem to suggest a range of between 40 to 50 per cent.”[3]

The judge’s Reasons for Sentence

9.  The judge adopted the combined approach in sentencing the appellant and, having applied the conversion test, reached a starting point of 11 years and 3 months. She disregarded the cannabis and chloroethcathinone and used Ice as the base drug for sentencing, it being the most serious drug. The judge enhanced her starting point by 6 months to reflect the fact that the appellant was a Form 8 recognizance holder.  She also referred to the fact that the appellant’s trafficking involved multiple types of dangerous drugs but she did not specifically say that she was treating this as an aggravating factor.

10.  As the appellant had pleaded guilty and provided assistance to the prosecution the judge awarded him a 45% discount, resulting in a final sentence of 6 years and 6 months.

The post-sentence events

11.  After the appellant had been sentenced by the judge it became known that on 11 April 2019 the appellant had appeared at Shatin Magistracy and pleaded guilty to “remaining in Hong Kong without the authority of the Director of Immigration”. For this offence he had been sentenced to 12 months’ imprisonment. Once apprised of this information the judge brought the appellant back before her on 2 July 2019 to be re-sentenced.

12.  The judge was invited by the appellant’s counsel to amend her sentence by recourse to the ‘slip rule’. The transcript would appear to suggest that she considered she was functus officio but nevertheless could employ the slip rule to make an order to reflect what she would have ordered had she been aware of the sentence for the unlawful remaining offence.

13.  The judge ordered that 9 months of the appellant’s unlawful remaining sentence should be served consecutively to his sentence of 6 years and 6 months with 3 months to be served concurrently. It is evident from the judge’s Reasons for Sentence that she was concerned that there was a risk of double punishment of the appellant if the two sentences were made wholly consecutive to each other. This risk of double punishment arose, she thought, because both sentences contained punishment for the appellant’s illegal immigrant status. In her sentence this was reflected in the enhancement which she had made to the starting point of her sentence for the appellant’s Form 8 recognizance holder status.

The Ground of Appeal

14.  Mr Phil Chau, for the appellant, raises only one ground of appeal and that is that the appellant should have received a 50% reduction on account of the assistance he provided to the prosecution by testifying at the trial of D1. In support of this ground he relied upon the judgment of the Court of Final Appeal in Z v HKSAR[4].

15.  Mr Chau’s position in respect of the jurisdiction of the judge to make the order of 2 July 2019 is that she was functus officio and could not rely on the slip rule to re-sentence the appellant. The reason for this is that when the Certificate for Sentences dated 19 June 2019 was delivered to the Commissioner of Correctional Services pursuant to section 86 (1) of the Criminal Procedure Ordinance, Cap 221 it became perfected. In support of this proposition Mr Chau relied on HKSAR v Tins Label Factory.[5]

16.  Nor was recourse to the slip rule an available avenue for the judge as this rule is intended to be used to correct errors or omissions in a court’s judgment to ensure that that judgment reflects and implements the intention of the court.[6] Obviously, the judge being unaware on 19 June of the appellant’s conviction in the magistrate’s court, it cannot sensibly be said that the sentence she then imposed on the appellant did not reflect the court’s intention.

17.  As to what sentence this court should impose on the appellant, Mr Chau submitted that the enhancement of the starting point by 6 months for the appellant’s Form 8 status as well as the other relevant circumstances, in particular the mixed cocktail of drugs, was an appropriate amount.

18.  Mr Chau submitted that 3 months of the sentence for trafficking dangerous drugs should be made to run concurrently to the unlawful remaining sentence, as this avoids punishing the appellant again for his status in Hong Kong as a Form 8 holder.

The respondent’s submissions on sentence

19.  Ms Kasmine Hui, for the respondent, also accepted that the judge was functus officio and that she should have awarded the appellant a 50% discount for having testified for the prosecution. She agreed that it now fell to this court to sentence the appellant afresh.

20.  As being relevant to that exercise Ms Hui identified four aggravating features for the purpose of enhancing the appropriate starting point for sentence.

21.  First, the appellant was a Form 8 holder. Ms Hui submitted that the authorities suggest an enhancement of one year[7] and, given the quantities of narcotic in the present case, namely 60.63 grammes of cocaine, 55.63 grammes of Ice and 7.13 grammes of MDMA, that period of time is appropriate for the appellant.

22.  Secondly, in January 2017 the appellant was sentenced to 3 months’ imprisonment for trafficking a dangerous drug involving cannabis, while the present offence occurred only seven months later, in July 2017. Ms Hui submitted this indicated a lack of remorse on the part of the appellant justifying a one-year enhancement.

23.  Thirdly, the fact that there were 8 different drugs involved warranted an enhancement of 6 months is appropriate for this aggravating factor.

24.  Fourthly, the role played by the appellant. Ms Hui submitted that the appellant was not just a courier but was a “trusted employee who had free access to a room full of drugs”. Therefore, the sentence should be enhanced by 6 months.

25.  This results in a total enhancement of 36 months which, Ms Hui submitted, should be reduced to 30 months in order that the totality is not excessive. Ms Hui submitted that the starting point should be 11 years and 3 months, resulting in 6 years and 10.5 months after a discount of 50%, for the assistance given by the appellant to the authorities.

26.  As for the unlawful remaining sentence, Ms Hui argued that the sentence for it of 12 months should be served wholly consecutively.

Discussion

27.  We agree that the judge was wrong to award the appellant a discount of only 45% for his assistance in testifying for the prosecution. The authorities are clear; it should have been 50%.[8] We also agree that the judge was functus officio by the time of the second sentencing hearing and that the slip rule was not available to her in the circumstances of this case. The judge did not have power to do what she did and she certainly could not alter the sentence of the magistrate for the unlawful remaining offence by making an order as to when that sentence, as opposed to her own, should take effect. The sentence imposed by the judge on 2 July 2019, being imposed when the judge had no jurisdiction, must be treated as a nullity. The sentence imposed on 19 June 2019 contains an error and must be set aside. Consequently, it fell to this court to sentence the appellant afresh.

28.  The first issue is the assessment of an appropriate starting point. The judge adopted 11 years and 3 months and it is not disputed that this is arithmetically correct for the combination of drugs in which the appellant trafficked. But the arithmetic calculation is only to be employed as the starting point for those whose involvement in drug trafficking is at the lowest level of culpability. The label commonly given to such persons is “courier” but the label is intended to do no more than convey the idea that the role played by the offender, whatever in reality it might have been, was at the lowest level of drug trafficking culpability. Even though arithmetic is used as a tool to reach a quantity based figure the starting point which a sentencing judge adopts will ultimately be an individualised starting point that is personal to the particular offender. This is because it will be a starting point that is determined by an assessment of that person’s overall culpability. The arithmetically calculated quantity based figure is just an aid to the sentencer in assessing that overall culpability, of which an important, but not the sole, component is the harm that can be done to Hong Kong by the type and quantity of the dangerous drug being trafficked.

29.  Ms Hui asserted that the appellant’s role was more than that of a mere courier. Determining whether the appellant had a more culpable role in the commission of this offence depends on what can be inferred from the Summary of Facts which he admitted and which was used for his sentencing.  This document reveals that the appellant had a key to premises in which dangerous drugs were being stored and in which there were an electronic scale and a large quantity of resealable plastic bags. Furthermore, the appellant’s fingerprints were found on a notebook and on pieces of paper both of which were suspected of being used to record drug transactions. Finally, there was an amount of HK$36,170 in cash, which is a very large amount of money for an unemployed asylum seeker whose sole source of income should be a welfare payment. The only reasonable inference is that, together with D1, the appellant was operating a packaging and distribution centre for dangerous drugs.

30.  Mr Chau argued that this placed the appellant only one rung up the ladder in terms of the level of his culpability. He submitted that the starting point for this slightly higher level of culpability should be between 11 years 6 months and 11 years 9 months and urged us to adopt the former rather than the latter period as our starting point.

31.  We agree with Ms Hui that the appellant’s greater involvement in drug trafficking warrants a higher starting point. However, the information in the Summary of Facts reveals more about what the appellant was doing but less about how far up the chain of command of this drug syndicate he was positioned. Given that the appellant was an asylum seeker who had been in Hong Kong only a relatively short period of time, we feel that we have to assume that he was the pawn of others rather than being senior within the syndicate. For these reasons we adopted a starting point of 11 years 6 months.      

32.  The second issue is to determine whether there are present any aggravating factors which warrant an enhancement of this starting point. The judge certainly found the appellant’s Form 8 recognizance holder status to be an aggravating factor for which she enhanced her starting point by only 6 months. She also had regard to the fact that the appellant trafficked in multiple types of dangerous drugs but she appears to have seen it as merely a circumstance of the offence rather than as a matter which aggravated the appellant’s culpability. There is no doubt that it is an aggravating factor and Mr Chau did not contend otherwise.

33.  But Ms Hui submitted there are other aggravating factors and asked us to have regard to them before deciding by how much we should enhance our starting point. One of her other aggravating factors was the role of the appellant but we have already dealt with that as it is properly to be regarded as going to the assessment of an appropriate starting point rather than being an aggravating matter which enhances that starting point.

34.  The only other of Ms Hui’s additional aggravating factors is the appellant’s prior conviction for trafficking in cannabis. However, we do not have details of that offence and we note that the appellant was prosecuted in the magistracy for it and received a sentence of only 3 months’ imprisonment. We also take into account the fact that the appellant has demonstrated some remorse by his plea and assistance to the authorities and that as his asylum claim has been rejected he will be deported from Hong Kong at the end of his sentence. In view of these matters, and with such bare information before us on his prior conviction, we feel that we cannot confidently say that it demonstrates that the appellant needs further deterrence than is contained in his present sentence.

35.  The third issue is to assess the amount by which the starting point should be enhanced to allow for the presence of these aggravating factors. We are in no doubt that the judge’s enhancement of 6 months was unduly lenient. We are of the view that, given the nature and gravity of the two aggravating factors, there must be a substantial enhancement to the starting point.

36.  But the sentence must not be disproportionate to the appellant’s culpability or result in a crushing sentence. Whenever there are multiple aggravating factors there is always the danger that enhancing for each of them and adding them all together will result in a cumulative quantum of enhancements that offends the totality principle. This point was emphasized by Zervos JA in giving the judgment of the Court of Appeal in HKSAR v Islam Azharul:

“20. This case is a useful reminder of the importance for a sentencing court in following the discipline of taking the necessary steps when determining a just and appropriate sentence to be imposed upon an offender. In the case of a single offence, this usually involves in its basic form the sentencing court first adopting a starting point based on the blameworthiness of the offender and the harm caused by the offence. Secondly, the sentencing court should list the aggravating factors, explaining which factors have or have not been taken into account and specifying the amount of enhancement given for the factors that have been taken into account. Thirdly, the sentencing court should list the mitigating factors, explaining which factors have or have not been taken into account and specifying the amount of reduction given for the factors that have been taken into account. Having specified the enhancements given for the aggravating factors, it is important for the sentencing court to ensure that the aggregation of the enhancements does not result in an oppressive and overloaded sentence, and by the application of the totality principle this will require determining an appropriate effective total of the enhancements.”[9] (Emphasis added.)

37.  After giving consideration to overall totality we are of the view that a total enhancement of 12 months to the starting point appropriately reflects all these aggravating factors. This produces a final starting point of 12 years 6 months which when reduced by 50% becomes 6 years 3 months.

38.  The fourth and final issue is whether the sentence for the drug trafficking offence should be served wholly consecutively to the sentence for the unlawful remaining offence. It is not disputed that the normal course, as stipulated by Court of Appeal authority, is that the sentences for offences committed by illegal immigrants whilst at large in Hong Kong should be served consecutively to their immigration offence sentences. The only reason why this is an issue in the present case is because the drug trafficking sentence contains an enhancement for the appellant’s Form 8 recognizance holder status and it was argued, and accepted by the judge, that if the drug trafficking sentence was ordered to be served wholly consecutively to the immigration offence sentence, the effect would be to punish the appellant twice for being an illegal immigrant.

39.  The unlawful remaining offence punishes the offender for, in effect, being an illegal immigrant. The Form 8 recognizance holder aggravating factor is not punishing the offender because he is an illegal immigrant but rather because of the way he has abused the trust and hospitality of the Hong Kong people while enjoying his liberty as he awaits the processing of his asylum claim. The two offences are quite different and no element of double punishment is involved in making the drug trafficking sentence wholly consecutive to the unlawful remaining sentence.

40.  Notwithstanding that we are of the view that no double punishment is involved we have decided to make an order of consecutiveness which reflects what the judge intended. We are minded to do this for a number of reasons. First, the appellant has shown some remorse since his arrest by pleading guilty to both offences. Secondly, his asylum claim has been processed and rejected and so he will be deported at the expiration of his sentence. Thirdly, he has assisted the prosecution in testifying against his accomplice and fourthly he has had to endure waiting for the outcome of this appeal in order to finally know the sentence he has to serve.

Disposition

41.  For these reasons we allowed the appeal, set aside the sentence of the judge and sentenced the appellant to 6 years and 3 months’ imprisonment, 6 years of which we ordered should be served consecutively to, and 3 months concurrent with, the sentence imposed on him for the unlawful remaining offence. 

[1] McWalters JA, [2020] HKCA 354.

[2] Appeal Bundle, page 4B-D.

[3] Appeal Bundle, page 3M-N.

[4] (2007) 10 HKCFAR 183

[5] (2008) 11 HKCFAR 637

[6] See HKSAR v Law Chun Man (No 2) [2013] 1 HKLRD 555

[7] Ms Hui relied on judgments of the Court of Appeal in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664; HKSAR v Ali Saif [2018] 6 HKC 19 and HKSAR v Mahabul Alam Khan CACC 116/2016, unreported, 8 September 2017.

[8] See Z v HKSAR (2007) 10 HKCFAR 183

[9] [2020] 1 HKLRD 644 at 649