HKSAR v. Husain Saddam

CACC 206/2017

[2018] HKCA 55

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 206 OF 2017

(ON APPEAL FROM DCCC NO. 1156 OF 2016)

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J U D G M E N T

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1.The applicant, who appears in person having been refused the grant of legal aid on 24 August 2017, seeks leave to appeal against the total sentence of 3 years and 8 months’ imprisonment imposed on him on 19 June 2017 by Deputy District Judge Jason Wan, following his pleas of guilty to two charges of unlawfully trafficking in dangerous drugs on 29 July 2016, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Charge 1

2.By Charge 1, it was alleged that the applicant had trafficked unlawfully in multiple dangerous drugs at Room 5A, 5/F, 23A Lock Road, Tsim Sha Tsui, Kowloon.  The Particulars of Offence alleged that the applicant had unlawfully trafficked in:

6.87 grammes of methamphetamine hydrochloride (“Ice”);

2 capsules, containing 0.14 grammes of methylenedioxymethamphetamine (“Ecstasy”);

4 tablets, containing 0.01 gramme of methamphetamine and 0.41 gramme of Ecstasy;

9 capsules, containing 22 milligrammes of alprazolam;

52.3 grammes of cannabis in herbal form;

5.42 grammes of cocaine and 37.78 grammes of cannabis resin; and

675 tablets, containing 0.33 milligrammes of alprazolam.

Charge 2

3.By Charge 2, it was alleged that the applicant had unlawfully trafficked at Room 912, 9/F, Hai Phong Mansion, 53/55 Haiphong Road, Tsim Sha Tsui in 489 grammes of cannabis in herbal form.

The facts

4.At around 3:55 a.m. on 29 July 2016, police officers found the applicant inside Room 5A, 5/F, No. 23A Lock Road, Tsim Sha Tsui, Kowloon.  Although the police officers had heard the voices of people talking inside the premises, no one answered their knocks on the door.  So, one of the police officers broke open the door and the police party entered.  Outside, but adjacent to the entrance of the premises, was a shoe cabinet, which was found to contain no fewer than 40 transparent re-sealable plastic bags.  They were found to contain all of the dangerous drugs stipulated in the Particulars of Offence of Charge 1, save for the 675 tablets containing alprazolam.  Those tablets were found hidden in socks contained in some of the shoes found inside the shoe cabinet.  The applicant was arrested and found to be in possession $1,370.

Charge 2

5.At about 4:05 a.m. on 29 July 2016, having received no response to knocking on the door, police officers broke open the door to Room 912, 9/F, Hai Phong Mansion, 53/55 Haiphong Road, Tsim Sha Tsui.  No person was found on the premises.  However, a yellow plastic packet was found inside a black plastic bag in a nylon wardrobe.  It was found to contain the 489 grammes of cannabis in herbal form, the subject of Charge 2.

6.In subsequent video recorded interviews, the applicant admitted, inter alia, that he had brought the dangerous drugs, the subject of the two charges, to the respective premises.  He said that he had found them in a rubbish bin in Kowloon Park about three weeks earlier.  He claimed that he was in possession of the dangerous drugs for his own consumption.  He stayed in each of the premises from time to time, each of which was occupied by friends.  He had no fixed abode and no job.  He received an allowance from ISS.  He had come to Hong Kong from Kolkata, India in 2014 and lodged a non-refoulement claim in August 2014.

7.In pleading guilty, the applicant accepted that the street value of the dangerous drugs was $57,318 and that he possessed them for the purpose of unlawful trafficking.

Mitigation

8.In mitigation, Ms Dosani, who appeared for the applicant in the lower court, informed the judge that the applicant was a single man of 26 years of age and the holder of a Form 8 Recognizance.  She acknowledged that the applicant had a conviction for possession of a dangerous drug, namely cannabis in herbal form, for which he was sentenced to 14 days’ imprisonment on 9 July 2015.

9.Ms Dosani informed the judge that the applicant had made a ‘non-prejudicial’ statement to the police on 29 May 2017, but accepted that investigations were still underway and acknowledged that, if anything emerged that enured to the benefit of the applicant, the matter could be taken up with the Court of Appeal in due course.

10.In her written submissions Ms Dosani presented the judge with her calculations of how a starting point for sentence could be stipulated appropriately by three different methods: namely, the combined approach, conversion test and ratio test.  In addition, she acknowledged that it would be appropriate for there to be in upward adjustment of sentence to reflect the fact that the offences had been committed whilst the applicant was in Hong Kong as an “asylum seeker”.  She suggested that increase of sentence should be 6 months’ imprisonment.

Reasons for sentence

Charge 1

11.Of his approach to stipulating the appropriate starting point to be taken to sentence for Charge 1, the judge said:[1]

“ As the 1^st charge involves different types of drugs, after considered all the circumstances of the case, I am of the view that the “combined approach” should be adopted in sentencing the defendant: HKSAR v Yip Wai Yin and anor [2004] 3 HKC 367.”

12.Then, having noted that the guidelines stipulated by this Court for sentencing for unlawfully trafficking in Ice in AG v Ching Kwok Hung [2] in the range of up to 10 grammes of Ice was between 3 to 7 years’ imprisonment, and having adverted to the guidelines in respect of ecstasy [3] and cannabis resin [4], and having noted that there was no specific guideline in respect of alprazolam, the judge said:[5]

“ Considered the potency and quantities of the drugs involved in the 1st charge, 6.87 grammes of ice will lead to the highest sentence and therefore should be the base of the sentence. Considered all the circumstances, I am of the view that 5 years is the appropriate starting point for 6.87 grammes of ice. For the other types of the drugs involved in the 1^st charge, other than cocaine, the rest are of very small amount and are insignificant in terms of sentencing. Considered all the circumstances, for the 5.42 grammes of cocaine, I will make an upward adjustment of 6 months to the overall starting point. For the other types of drugs, I make no further adjustment.

Therefore, the overall starting point for the combined drug of the 1^st charge should be 5 years and 6 months.  After cross-checking with the various tests as set out in HKSAR v Chan Yuk Leong, unrep, CACC 318/2013, I am satisfied that the above starting point for the 1^st charge is appropriate.”

Charge 2

13.In stipulating the starting point to be taken for sentence for Charge 2, the judge said:[6]

“ For the 2^nd charge, according to Tuen Shui Ming for herbal cannabis, a discount of up to a year should be given from the tariff for cannabis resin. All things considered, the appropriate starting point for the 2^nd charge should be 3 months’ imprisonment.

14.Earlier, the judge had said that the guideline for cannabis resin articulated in the judgment of this Court in AG v Tuen Shui Ming for “Under 2000 grammes - Below 16 months” and that “for herbal cannabis, it was indicated by the Court of Appeal that cannabis resin has a concentration about four times higher than herbal cannabis.” [7]

Discount

15.The judge said that he afforded the applicant a discount of one-third from that taken as the starting point for sentence.  Accordingly, he sentenced the applicant to 3 years and 8 months’ imprisonment for Charge 1 and to 2 months’ imprisonment for Charge 2, ordering that the sentences be served concurrently.  Accordingly, the total sentence imposed on the applicant was 3 years and 8 months’ imprisonment.

Grounds of appeal against sentence

16.Although the applicant indicated in Form XI that he wished to seek leave to appeal against sentence, he articulated no grounds of appeal in support of that application.

17.At the hearing, the applicant said that he had told the police that he was very remorseful.  Further, he had helped the police with information in respect of dangerous drug activities.

The respondent’s submissions

18.In the respondent’s written submissions, Ms Mickey Fung submitted that the starting point for sentence adopted by the judge for Charge 1 was lenient.  She submitted that, on an arithmetic basis, the appropriate sentence to be imposed on the applicant in respect of unlawfully trafficking in 6.87 grammes of Ice alone was 5 years and 9 months’ imprisonment, whereas the judge stipulated a starting point for both that quantity of Ice and for the cocaine of 5 years and 6 months’ imprisonment.  That was lenient.

19.Ms Fung invited the Court to note that if it had been assumed that the total amount of cocaine and Ice, namely 12.3 grammes, was cocaine rather than Ice, i.e. the dangerous drug which attracted a lower level of sentence than Ice, nevertheless the starting point for sentence ought to have been 5.17 years’ imprisonment.  Further, Ms Fung said that the judge had failed to have regard to two aggravating factors in the commission of the offence.  First, in Charge 1 the applicant trafficked unlawfully in multiple drugs, which of itself was an aggravating factor in the commission of the offence.[8]  Secondly, that the applicant had committed the two offences of unlawfully trafficking in dangerous drugs whilst permitted to remain in Hong Kong as a Form 8 recognizance holder, which was an aggravating factor in the commission of the offences.[9]   Ms Fung accepted that the sentence of 2 months’ imprisonment imposed in respect of Charge 2 was within the sentencing guidelines.

20.In oral submissions for the respondent, Ms Claudia Ng submitted that the sentence imposed on the applicant was “unduly lenient”.

A consideration of the submissions

21.In response to a direction of Master Tam, the respondent informed the Court, by letter dated 4 October 2017, that “no fruitful result” had been obtained from enquiries that had been made from information provided by the applicant in his non-prejudicial statement.  At the hearing, the applicant was informed of the contents of that letter.  He said that he had no submissions to making response.

22.I am satisfied that there is considerable force in the respondent’s submissions.  Having regard to the total amount of Ice and cocaine, the judge’s stipulated starting point for Charge 1 of 5 years and 6 months’ imprisonment was itself lenient.  Surprisingly, the judge did not even address the fact that the applicant was trafficking unlawfully in multiple dangerous drugs, indeed a veritable cocktail of dangerous drugs.  As the respondent has submitted, this Court has said on numerous occasions that in itself is a factor in aggravation of the commission of the offence.  As Cheung JA said in the judgment of this Court in HKSAR v Yim Hung Lui Ricky in endorsing that proposition:[10]

“ … the presence of more than one type of drug in a drug trafficking offence is an aggravating factor because in such situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug: see HKSAR v Cheung Po-cho, Tommy CACC 233/2005, HKSAR v Ho Chak-ming CACC 316/2009 and HKSAR v Cheng Yat-ming CACC 455/2006.”

This factor was a factor in aggravation of the commission of the offence and ought to have been reflected in an enhancement of sentence.

23.Even more surprising was the fact that the judge did not address the fact that the two offences had been committed whilst the applicant was permitted to remain at liberty as a Form 8 Recognizance holder.  Indeed, it is little short of astonishing that he did not do so, given the fact that Ms Dosani had acknowledged entirely realistically on behalf of the applicant, in both written and oral submissions, that those circumstances constituted an aggravating factor in the commission of the offences for which an upward increase in sentence was merited.

24.Clearly, unlawfully trafficking in dangerous drugs is a crime which affects the community at large and has the effect of tarnishing this city’s reputation for security and order.[11]  In HKSAR v Norena Gutierrez this Court approved of the enhancement for this factor of 3 months’ imprisonment by the trial judge from a starting point of 3 years and 6 months’ imprisonment in sentencing the applicant to imprisonment for unlawfully trafficking in 5.41 grammes of cocaine.[12]  Given that this applicant had unlawfully trafficked in slightly more than that amount of cocaine, together with 6.87 grammes of Ice, in my judgment the suggested upward revision of sentence of 6 months’ imprisonment made by Ms Dosani in mitigation was entirely realistic.  The judge ought to have enhanced the starting point taken for sentence to reflect that aggravating factor.

Conclusion

25.In the result, I am satisfied that not only have no reasonably arguable grounds of appeal against sentence been advanced but also it is clear that the sentence imposed on the applicant was unduly lenient.  Accordingly, I refuse the application for leave to appeal against sentence.

26.Perspicaciously, the applicant wrote in Form XI:

“ I understand that the appeal against sentence may result in a(n) increase in sentence…”

In all the circumstances, it is appropriate that I remind the applicant that this Court does indeed have that power.

27.Further, the applicant is advised that he has the right to renew his application for leave to appeal against sentence to the Full Court but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.

Ms Claudia Ng, SPP, of the Department of Justice, for the respondent

The applicant appeared in person

[1] Reasons for Sentence, paragraph 9.

[2] AG v Ching Kwok Hung[1991] 2 HKLRD 125.

[3] Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

[4] AG v Tuen Shui Ming [1995] 2 HKCLR 129.

[5] Reasons for Sentence, paragraphs 11 and 12.

[6] Reasons for Sentence, paragraph 13.

[7] Reasons for Sentence, paragraph 10(d).

[8] HKSAR v Yin Hung Lui Ricky (CACC 266/2011; unreported, 13 February 2012); cited with approval in HKSAR v Ramirez [2015] 1 HKLRD 966, at paragraph 19.

[9] HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206, at paragraphs 20-22; HKSARv Norena Gutierrez (CACC 319/2014; unreported, 30 April 2015) at paragraph 20-26; HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, at paragraphs 30-35.

[10] HKSAR v Yin Hung Lui Ricky, at paragraph 11.

[11] HKSARv Sandagdorj Altankhuyag & Another, paragraph 21; HKSARv Norena Gutierrez, paragraph 27.

[12] HKSAR v Norena Gutierrez, paragraphs 14, 18 and 27.