HKSAR v. Gai Malick

HCMA 271/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 271 OF 2017

(ON APPEAL FROM KCCC NO 162 OF 2017)

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J U D G M E N T

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1.The Appellant was convicted by Magistrate Veronica Heung of one count of trafficking in a dangerous drug, namely, 0.56 g of a powder containing 0.43 g of cocaine. He was sentenced to an imprisonment term of 26 months. He now appeals against the conviction and sentence. At trial, the Appellant was represented by Mr Percy of counsel under the Duty Lawyer Service. In these appellate proceedings in relation to sentence, the Appellant was originally represented by Mr Ross of Counsel, instructed by Director of Legal Aid. However, the Appellant fired Mr Ross on the very day when the appeal hearing was heard. The Appellant asked to adjourn the proceedings. I refused the application. The Appellant then said he would present his case in person.

2.The Appellant in his handwritten letter dated 21 July 2017 said he is an “educated young man who speaks good English and understands good English” and he is “not interested in [having an] interpreter.”  The Appellant also said in his letter that his “right to choice of legal representation” should be respected and he insisted that his “nominees”, viz “Barrister Mr James HM McGowan and solicitor Mr Christopher Morley, most importantly Mr McGowan” should be appointed to represent the Appellant.

The prosecution case

3.On 23 April 2016, the Appellant, a Form 8 holder seeking asylum, sold the drug to an undercover police officer [PW1] near the staircase outside No 41 Wyndham Street in Central.  The transaction was witnessed by PW1’s teammate, PW11.  Soon after the transaction, PW11 deliberately approached the Appellant and conducted an identity check.  Based on this check, the police eventually arrested the Appellant on 31 August 2016.

4.It was the defence case that the police officer arrested the Appellant wrongly.  He was not even at the scene on 23 April.

Grounds of appeal against conviction

5.The Appellant prepared a 28-page long homemade grounds of appeal against conviction and sentence on 10 April 2017 [1]. The Appellant said, “we should bear in mind that Hong Kong is governed by the rule of law and the judicial system has an established appeal mechanism.”  The Appellant said “the magistrate’s verdict after the completion of trial was legally flawed, a huge miscarriage of justice indeed and the lower court has also erred (made a mistake) in finding the true facts and cogent evidence.”  The Appellant further said:

“ To my vivid recollection, I am very confident that Sgt Lung whom I met in LKF on the morning of 24^th April 2016 was not among the prosecution witnesses who testified in court.”

The Appellant said the police officers were telling lies.  He complained that:

“ the court had been ‘abused’ in my case … (we) had past the era when prosecution witnesses will just ‘talk and talk’ in the absence of cogent evidence and magistrate’s [sic] should not cooperate with police officers in convicting innocent persons. This is not a Kangaroo court.”

6.The Appellant wrote, “the court testimonies of PW14 and PW11 were totally inadmissible hearsay.” ^[2] The Appellant labelled his appeal as “a matter of Absolute Innocence.” ^[3]  The Appellant cited a few cases and the extract of Archbold Hong Kong 2017 on the law of dock identification.^[4]  The Appellant asked this Court to “quash the decisions of the lower court regarding my conviction and unfortunate sentence which was mainly due to mistaken identity or deliberate framed-up …” ^[5]

Grounds of appeal against sentence

7.In his submission against sentence, Mr Ross, previously counsel for the Appellant, submitted that it was wrong to take 2 years’ imprisonment as a starting point, and a “starting point sentence should be significantly less than 24 months and commensurate with the appropriate annexed sentence.”  Various sentences in other unrelated cases were cited.

Considerations re conviction

8.An appeal under the Magistrates Ordinance is by way of rehearing of the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit.  On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard.  It follows that the appellate court is also required to ensure that all proper procedural steps were adhered to and safeguards were put in place as to the admissibility of such evidence as was relied upon by the court below.

9.When considering the ‘Issue’ of the trial, the Magistrate noted that:

“ … as stated by the defence counsel right at the beginning of the trial, the issue of the case was the correctness of the identification. The prosecution was also put to strict proof of the chain of evidence. In the middle of the trial and from the cross-‌examination of the prosecution witnesses, the defence further informed the court that the line of defence was also that the defendant was framed up by the police.” [6]

10.At trial, the Magistrate “did not allow first time dock identification by PW1 and PW11 in court.  I allowed PW11 to identify the defendant in court only to the extent that he could recognize the defendant as the one who was arrested by PW12 on 31 August 2016 outside Ma Tau Wai Government Building in his presence.” [7]  The Magistrate then spent several paragraphs on the issue of identification and the chain of evidence.[8]  At the end, the Magistrate was of the view that she:

“ … was sure that the black male who sold the dangerous drug toPW1 on 23 April 2016 and the black male who was intercepted by PW11 a few minutes afterwards on the same day was exactly the same black male. With the particulars shown on the Form 8 and recorded down by PW11 on 23 April 2016, I was sure that the black male who was intercepted by PW11 was exactly the black male who was arrested by PW12 on 31 August 2016, i.e. the defendant.” [9]

11.The Magistrate respected the right of the Appellant who elected not to give evidence in court, and there was no adverse inference to be drawn therefrom.  Eventually, the Magistrate found the prosecution has proved its case and she convicted the Appellant.  The Magistrate found the prosecution witnesses honest and reliable, and they were giving accurate evidence.[10]  Her factual findings were not flawed.

12.Taking all factors into consideration, I do not find the conviction so reached by the Magistrate unsafe nor unsatisfactory.

Considerations re sentence

13.It is well established that sentencing a convicted defendant is not a straightjacket, even though certain sentencing guidelines are provided by the higher courts.  The test is whether the sentence so imposed by the Magistrate in the present case is either manifestly excessive or wrong in principle.

14.The Magistrate used a starting point of 24 months and enhanced it to 26 months in light of the comment of the Court of Appeal in HKSAR v Shah Syed Arif [11] whereby it was stated that:

“ 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.”

In that case, the Court of Appeal has been concerned for the increasing prevalence of serious crimes being committed by non-refoulement claimants, in particular torture claimants.[12]

15.Sentences in other cases were cited but they were not the sentencing guidelines as such.  As observed by the Court of Appeal in HKSAR v Mohamed Abubakar Nazir [13]:

“ The fact that others in similar circumstances to himself, as the applicant has been able to discover, have received lower sentences for trafficking in larger quantities of heroin is not to the point. We are only concerned with the propriety of the applicant’s sentence ….”

This sentiment was echoed by the Court of First Instance in HKSAR v Darboe Lansana & Anor whereby it was said, as regards to those Magistracies cases involving similar amounts which resulted in much lower sentences:

“ Those cases are of no value in this appeal and I did not peruse any single one of them. It is pointless to compare cases where larger quantities were involved but resulted in lower sentences‌…or cases where other Defendants have received greater degree of leniency than is indicated by the guidelines in Lau Tak Ming ‌[1990] 2 HKLR 370, ….” [14]

16.In the present appeal, the Appellant committed an offence in Hong Kong which could be taken as a serious breach of trust and privilege extended to him by the people of Hong Kong.  He had applied for legal aid and discharged the duty of his counsel on the very day of this appeal. That said, I have also considered the written submission filed by Mr Ross in addition to what was submitted by the Appellant.

17.Taking all factors into account, I cannot say the sentence so imposed was manifestly excessive.

Conclusion

18.For the above reasons, the Appellant’s appeal against the conviction and sentence is dismissed.

Mr Eddie Sean, SADPP of the Department of Justice, for the respondent

Mr Phillip Ross, instructed by Mohnani & Associates, assigned by Director of Legal Aid, for the appellant (for the appeal against sentence, before the hearing)

The appellant appeared in person (at the hearing)