HKSAR v. Khalid Mansoor and Others

CACC 381/2017

[2018] HKCA 517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 381 OF 2017

(ON APPEAL FROM DCCC NO 1084 OF 2016)

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Before: Hon Zervos JA in Court

Dates of Hearing: 15 August and 11 October 2018

Date of Judgment: 11 October 2018

Date of Reasons for Judgment: 16 October 2018

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REASONS FOR JUDGMENT

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1.The applicants stood trial before Deputy District Judge A Yim (the judge) jointly charged with a single offence of assisting the passage within Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115.

2.On 10 August 2017, the 2^nd applicant pleaded guilty to the offence, but disputed certain facts, particularly the allegation that he was “the central organiser” of the offence.  In order to resolve the issue, the judge directed that a Newton hearing be held.  The 1^st and 3^rd applicants pleaded not guilty to the offence and proceeded to trial.  The Newton hearing was heard together with the trial of the 1^st and 3^rd applicants without objection from the applicants. 

3.On 30 October 2017, the judge found the 1^st and 3^rd applicants guilty of the offence, and the 2^nd applicant was the central organiser in receiving the unauthorised entrants in Hong Kong. 

4.On 15 November 2017, the judge sentenced the 1^st, 2^nd and 3^rd applicants to terms of imprisonment of 32 months, 43 months and 32 months respectively.

The applications for leave to appeal

5.The 1^st applicant in his Form XI applies for leave to appeal against conviction and sentence, but does not specify any grounds of appeal. 

6.The 2^nd applicant in his Form XI applies for leave to appeal against sentence.  In his appeal papers, he complained that his sentence was too high.  He emphasised that he has been in Hong Kong for 5 years without a criminal record.  He said that his only mistake was that he arranged the passage of his brother to Hong Kong to help him and that he had no intention of deriving any financial benefit from the arrangement.  He said that he was merely the organiser in order to assist his brother to come to Hong Kong for a better life.  He pointed out that he admitted his guilt and pleaded guilty.  He complained that he was given a greater sentence than the other two applicants and that he only received a discount of 20% for his plea of guilty.

7.The 3^rd applicant in his Form XI applies for leave to appeal against conviction only.  In his appeal papers, he complained that he did not commit the offence and the case was not proven against him.  He emphasised that he has been residing in Hong Kong for 4 years and has not been in trouble with the law.  He claimed that the three of them are innocent of the crime.  He said that he and the 1^st applicant had no connection with the three unauthorised entrants and did not know them. He said that this was confirmed by 2^nd applicant in evidence at trial.  He said that the three of them are friends who met on 14 August 2016.  On that day, the 2^nd applicant told him and the 1^st applicant to go to Tuen Mun to meet a friend but only later did he and the 1^st applicant realised that it was to pick up the 2^nd applicant’s brother. 

8.At the hearing of the applications, the three applicants appeared in person having had legal aid refused.  After reserving judgment, I directed the parties to address me on an issue that had not been previously raised, namely the fact that the trial of the 1^st and 3^rd applicants was heard together with the Newton hearing of the 2^nd applicant.

9.Ms Laura Liu, for the respondent, brought to my attention the case of KK v Director of Public Prosecutions [2016] 4 WLR 162 where a trial court heard the trial of a defendant together with the Newton hearing of a co-defendant.  It was conceded that the evidence of a co-defendant in the Newton hearing was not admissible in the trial of the other defendant.  She also referred to other cases where it was held that the usual practice is for a Newton hearing in respect of a co-defendant who has pleaded guilty to follow after the conclusion of the trial of the defendant who has pleaded not guilty, although there may be circumstances where this might not be appropriate.  See R v Smith (Patrick) (1988) 87 Cr App R 393; R v Stephen Dudley [2012] 2 Cr App R (S) 15; and R v Marsh [2018] 2 Cr App R (S) 28.

10.At the conclusion of the further hearing, I granted the 1^st and 3^rd applicants leave to appeal against conviction on the sole ground as to whether it was permissible for the judge to conduct the trial of the 1^st and 3^rd applicants together with the Newton hearing of the 2^nd applicant, and whether the judge used, or could use, the evidence of the Newton hearing in relation to the trial of the 1^st and 3^rd applicants.  Otherwise, I refused the 1^st and 3^rd applicants leave to appeal against conviction on the grounds that they had advanced and the 1^st applicant leave to appeal against sentence.  I also refused the 2^nd applicant leave to appeal against sentence on the grounds that he had advanced.  I indicated that I would hand down my reasons for my judgment in due course which I now do.

The proceedings before the judge

11.The circumstances in which the judge found herself were unusual.  The prosecution and the three applicants were represented by experienced trial counsel who did not object to combining the proceedings. 

12.The prosecution presented its case against the applicants, addressing the guilt of the 1^st and 3^rd applicants and the role of the 2^nd applicant in relation to the offence it was alleged that they had jointly committed.  However, the case proceeded as if the three applicants stood as three defendants at trial with each being separately represented by counsel throughout the proceedings.

13.The prosecution presented the evidence of its witnesses who in turn were available for cross-examination by counsel for each of the three applicants.  After the prosecution case had been presented, the three applicants presented their respective cases with each of them giving evidence.  The 1^st applicant also called a witness as part of his defence.  It would appear that the 2^nd applicant was not formally called as a witness as part of the case of either the 1^st  applicant or the 3^rd applicant,  although, it may be viewed that by the conduct of the defence cases of the 1^st and 3^rd applicants that the evidence of the 2^nd applicant was being relied upon by them.  When each of the three applicants presented their respective cases they were subject to cross-examination by prosecution counsel and counsel for the other two applicants. 

14.The extent to which there was any demarcation between the two sets of proceedings is unclear but the judge did remind herself that she had to consider the case against each of the applicants separately.  But the critical question is whether she took into account evidence that was not part of the trial of the 1^st and 3^rd applicants.

The cases at trial

15.The prosecution case was that the three applicants travelled by taxi from Nai Wai, Tuen Mun to Nim Wan Landfill (the Landfill) to pick up three unauthorised entrants and then convey them back to Nai Wai.  As the taxi was about to leave, police officers arrested the group of men.  The call and text message records of the mobile telephones seized from the men revealed that the 2^nd applicant was the principal organiser of a syndicate to receive the unauthorised entrants upon their arrival in Hong Kong by boat.  A subsequent sweep of the area by the police, located six other men, four of whom were Nepalese and the other two were Pakistanis.

16.The defence case was that the three applicants were friends who were to celebrate, together with others, Pakistan National Day on 14 August 2016.  The 2^nd applicant was responsible to cook the food for the event.  While he was preparing the food, he received a telephone call to meet up with friends and asked the 1^st and 3^rd applicants to accompany him.  They took a taxi to the Landfill where the 2^nd applicant alighted from the taxi with the 1^st applicant following him.  The 2^nd applicant intended to pick up his brother whom he had arranged to come into Hong Kong illegally.  However, he did not expect the other two unauthorised entrants.  He only helped the other two at the request of his brother after they had landed.  As the taxi could only take four passengers, the 2^nd applicant asked the 1^st applicant to convey the three unauthorised entrants to his home and he would arrange a separate taxi for himself and the 3^rd applicant.  The 1^st and 3^rd applicants had no knowledge of the status of the three unauthorised entrants.

The judge’s reasons for verdict

17.The judge in her reasons for verdict noted that the applicants had been jointly charged with the offence of assisting the passage within Hong Kong of unauthorised entrants.  She referred to the 1^st , 2^nd and 3^rd applicants as D1, D2 and D3 respectively.  As part of her introduction, she noted:

“2. D1 and D3 pleaded not guilty while D2 pleaded guilty but disputed the facts that he was the central organizer of the offence. Conviction of D2 was entered upon his plea and admission of the facts that supported the charge, as the facts in dispute had a potentially significant effect on the level of sentence, a Newton hearing was directed. Further because the evidence concerned was inter-related to the case against the co-defendants, the Newton hearing was directed to be heard together with the trial of D1 and D3. Parties raised no objection that the Newton hearing be heard, together with the trial at the same time.” (Emphasis added)

18.It is arguable that from the judge’s italicised remarks, she may have been of the view that the evidence to be presented in the Newton hearing was connected to the case against the 1^st and 3^rd applicants and therefore formed part of their trial.

19.The judge gave a brief outline of the prosecution case and the defence case.  She then identified the matters in dispute and explained how she would approach making her findings, emphasising that the case of “each defendant should be considered separately.”

20.She summarised the evidence by first providing a background to the case and describing what had happened on the day in question.  She stated that at around 3 am on 14 August 2016, the Hong Kong Marine Police picked up on its radar a suspicious object entering Hong Kong waters.  This was later confirmed to be a vessel that had brought to Hong Kong three unauthorised entrants who landed at Nim Wan at 3.17 am. Shortly before 8 am, the three applicants boarded a taxi at Nai Wai bus stop. 

21.The taxi driver testified at trial.  He said that during the journey, he was handed a mobile telephone and the caller instructed him to go to the Landfill.  When they got to the destination, the 1^st and 2^nd applicants alighted from the taxi and went to the guard post near the entrance of the Landfill. They appeared to be looking for something.  The 3^rd applicant, who remained in the taxi, gestured the taxi driver to go over to where the other two were located.  The taxi driver did as instructed.  The taxi driver saw the 1^st and 2^nd applicants climbing up from a ditch with several people following them.  The three unauthorised entrants got into the taxi with the 1^st applicant.  The 2^nd and 3^rd applicants were to remain at the location. 

22.As the taxi was about to leave, it was stopped by police and the applicants and the three unauthorised entrants were arrested.  The police seized the mobile telephones of the applicants and the unauthorised entrants.

23.The judge in her reasons accepted the evidence of the taxi driver while she rejected the evidence of the applicants.  She referred to a discrepancy between the evidence of “all the defendants” and the taxi driver in relation to whether the 1^st applicant alighted from the taxi after the 2^nd applicant which she resolved in favour of the taxi driver’s evidence.

24.She went on to address the issue of joint enterprise, during the course of which she said:

“29. The three defendants and the three UEs were seen talking at the scene in their own language. During the video interview, all the defendants gave a similar explanation for their presence at the scene. They boarded the taxi at Nai Wai, went over to the place of arrest to meet a friend and D1 was paying the taxi fare when the three UEs boarded the taxi. They did not know the three UEs. D2 explained he did not tell the police he was there to pick up his brother because he was scared as he had never committed any crime before.

30. All of the defendants, however, gave evidence that they intended take the same taxi back to Nai Wai, and no payment was tendered before their arrest.  When the D1 and D2 were shown their respective answer about ‘D1 was paying the taxi fare’, they invariably replied they did not remember what they have said at that time.  The fiat counsel did not put similar question to D3 again.  It could not be mere coincidence that the 3 defendants gave the same false account of the event in their respective interview, I consider they had concocted together in order to distance themselves from the 3 UEs found with them at the scene.  According to D1 and D3 they did not know the illegal status of the 3 UEs, D2’s brother was only introduced to them at the police station in the case of D3 and at Lai Chi Kwok in the case of D1.  Why would D1 and D3 want to concoct together with D2?”

25.It may be viewed that the judge has used the evidence of the 2^nd applicant presented in the Newton hearing to decide the credibility of the 1^st and 3^rd applicants.  It therefore raises the question that if she did, was it permissible in the circumstances of the case, and if it was not, what consequences flow from having done so. 

26.The judge then addressed the evidence of the defence witness and the 1^st and 3^rd applicants as well as the 2^nd applicant in turn.  The defence witness testified about the party arranged by the applicants on 14 August 2016 which she rejected because of certain inconsistencies in his account of the events on that day.  She described the evidence of the 1^st and 3^rd applicants as to their account as to what happened on the day which she rejected.  She said:

“37. According to the defence case, the party celebrating the National Day was held in D1’s home, D3 was one of the organizer while D2 was the chef, they have collected $4,000 from the friends and they were yet to complete the preparation of the party food. They took the party as an important event and started to do preparation early in the morning. D1 and D3 gave evidence respectively that in the course of the preparation they were only told by D2 to meet friend(s) at Tuen Mum, they were not told why they were required to go and the identity of the friend(s). Both D1 and D3 said they did not know, they did not ask for the reasons and they just went with D2. They may not be provided with an answer but I find it unbelievable that they did not even ask in the circumstances they alleged.

38. It is noted that the scene was in a remote area, one would not normally expect to find another taxi, it would be difficult for D2 to keep the taxi and looked for the 3 UEs at the same time on his own.  D1 gave evidence that during the journey he was sitting at the back with D2 in the taxi.  D3 gave evidence that he was sitting in the front passenger seat.  D2 gave evidence that he instructed the driver went to the Landfill with the assistance of a Nepalese over the phone.”

27.She described in detail the 2^nd applicant’s account of what happened on that day by reference to the accounts given by the 1^st and 3^rd applicants.  She posed a number of rhetorical questions which she answered by finding that all three applicants worked together to pick up the unauthorised entrants.  In the course of doing so, she said:

“45. The evidence of the defendants suggested that D2 was responsible for the cooking of the party due to be commenced at 11:00 am that morning and D2 was yet to purchase the meat for the cooking and the money for the purchase was with D2. Why would D1 and D3 agree instead of having D2 return first, he was left behind at a remote area where it was difficult to get another taxi and the mobile phone services connection was not go. When being asked how was he to arrange another taxi back, he said did not think of this matter at the time. I considered and find none of the defendants was an honest witness, I reject their respective evidence that D1 and D3 did not know the purpose to go to the Landfill and did not know the illegal status of the 3UEs.

46. According to Mr Leung’s evidence, all the three defendants worked together, on arrival D1 and D2 alighted and walked over to the guard post as if they were looking for something later turned out to be the 3 UEs named in the charge, while D3 was there to keep the taxi waiting.  I considered the evidence as a whole and find the only irresistible inference is that D1 and D3 each had full knowledge that they were to pick up UEs together with D2 when they hired Mr. Leung’s taxi.”

28.At this point, it would appear that the judge, having rejected the evidence of the three applicants, found that the 1^st and 3^rd applicants had full knowledge that they would pick up the unauthorised entrants together with the 2^nd applicant when they hired the taxi.  It could be viewed from the judge’s analysis of the evidence, that she relied on the evidence of the 2^nd applicant in deciding the case of the 1^st and 3^rd applicants, or more specifically their credibility.  The question again arises as to whether the judge has impermissibly relied on evidence that was not part of the trial of the 1^st and 3^rd applicants.

29.The judge went on to address the role of the 2^nd applicant by analysing in considerable detail his evidence and his telephone calls and text messages with others involved in the offence.  It may be viewed that the judge by doing so was considering the case of the 2^nd applicant separately from the case of the 1^st and 3^rd applicants.  However, it may go to support the contention that when she was discussing joint enterprise by reference to the evidence of the 1^st and 3^rd applicants together with the evidence of the 2^nd applicant, she was taking into account the evidence of the 2^nd applicant when evaluating the case against the 1^st and 3^rd applicants.

30.Following her appraisal of the evidence of the 2^nd applicant, the judge rejected his explanation that he was only arranging his brother to enter Hong Kong and not others.  She extensively analysed the records of the mobile telephones which revealed that the 2^nd applicant had a series of messages with others concerning the payments and arrangements for the transportation and arrival of the unauthorised entrants to Hong Kong in the morning of 14 August 2016.  The records also revealed a large volume of calls or text messages between the applicants leading up to the events on 14 August 2016 as well as contact between one of the unauthorised entrants and the 2^nd and 3^rd applicants, and another unauthorised entrant and the 2^nd applicant.  She concluded that the 2^nd applicant was the one who took care of things at the Hong Kong end to bring the unauthorised entrants into Hong Kong and that the 1^st and 3^rd applicants took instructions from the 2^nd applicant.

31.As explained by the judge, the evidence against the applicants was compelling, based mainly on the evidence of the taxi driver and the conduct of the applicants at the Landfill. There was also the call and text message records of the 2^nd applicant’s mobile phone which pointed to him playing a central role in receiving the unauthorised entrants in Hong Kong.  She disbelieved they had gathered to celebrate Pakistan National Day because of inconsistent evidence as to the venue of the event and rejected the explanation of the 1^st and 3^rd applicants for going to the Landfill, which was a remote area. 

The sentencing of the applicants

32.In sentencing the applicants, the judge confirmed that she found the case proven against them, namely that they were party to a joint enterprise to assist the passage within Hong Kong of unauthorised entrants and that the 2^nd applicant was “the leader of the three” and in close communication with those who had arranged the illegal entry of the unauthorised entrants into Hong Kong.  She rejected the 2^nd applicant’s assertion that he was only concerned about bringing into Hong Kong his brother and that he derived no commercial benefit out of the arrangement.

33.The judge noted that a person convicted on indictment for an offence under section 37D(1) of the Immigration Ordinance, Cap 115, was liable to a fine of $5 million and to imprisonment for 14 years.  She explained that the customary starting point for a person in charge of a vessel assisting the passage of unauthorised entrants into Hong Kong, absent any aggravating features, was 5 years’ imprisonment, citing authority, including HKSAR v Wong Chi Kiu, CACC 357/2004, 2 February 2005, unreported, and HKSAR v Yeung Wui [2005] 1 HKC 646.  After a review of further authority, in particular HKSAR v Chan Lai Choi, CACC 166/1997, 19 February 1998, unreported, she adopted starting points of 45 months’ imprisonment against the 2^nd applicant and 33 months’ imprisonment against each of the 1^st and 3^rd applicants.

34.No fault can be levelled against the judge for the starting points that she adopted.  This was a serious case of human smuggling that warranted severe punishment.  See HKSAR v Wan Ka Cheung, CACC 264/2001, 22 February 2002, unreported.

35.The judge held that the status of the three applicants as Form 8 recognizance holders at the time of the offence was an aggravating factor in the context of this case.  She determined that this warranted an enhancement of 2 months to the starting point of the sentence of each applicant.  In this regard, she was guided by HKSAR v Sandagdorj Altankhuyag and Another [2014] 1 HKC 206.

36.The judge went on to consider whether further enhancement to the sentences of the applicants was warranted under section 27 of the Organised and Serious Crimes Ordinance, Cap 455 (OSCO).  She addressed the relevant authorities and the submissions from the parties and concluded that the prosecution had proven to the requisite standard that the offence was an organised crime in the case of the 2^nd applicant but not in the case of the 1^st and 3^rd applicants.  She determined that an enhancement of 15% to the starting point of 45 months’ imprisonment would be appropriate to the sentence of the 2^nd applicant. 

37.The judge finally considered what discount should be granted to the 2^nd applicant for his guilty plea.  She determined it should be 20% because of the unsuccessful challenge by the 2^nd applicant in the Newton hearing as to his role in the crime.  She said she also took into account his clear record, however, in my view, it was not  appropriate to do so in the circumstances of the case. See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.  The reduction of the usual one third discount for a timely plea of guilty to 20% was fully justified in the circumstances of the case.

38.In sentencing the 2^nd applicant, the judge adopted a starting point of 45 months’ imprisonment, to which she added 15% (enhancement under OSCO), increasing it to 51.75 months, and a further 2 months (enhancement as a Form 8 recognizance holder) increasing it to 53.75 months, which resulted in a sentence of 43 months’ imprisonment after it was discounted by 20% for his guilty plea.

39.In sentencing the 1^st and 3^rd applicants, the judge adopted a starting point of 33 months’ imprisonment against each of them which she enhanced by 2 months and then reduced by 3 months for their clear records.  This resulted in a sentence on the 1^st and 3^rd applicants of 32 months’ imprisonment.  Again, it was not appropriate in the circumstances to reduce their sentences for their clear records.

40.The applicants have no cause for complaint for the sentences imposed on them. 

Conclusion

41.I do not find that the grounds advanced by the 3^rd applicant for leave to appeal against conviction, which seem to have been adopted by the 1^st applicant at the hearing, are reasonably arguable.  In essence, both applicants complain that they did not commit the offence and only accompanied the 2^nd applicant at his request to pick up a friend.  This was rejected by the judge, relying mainly on the evidence of the taxi driver.  As I have already explained, I found that there is a reasonably arguable ground on the issue of combining the proceedings.  To this extent, I granted the 1^st and 3^rd applicants leave to appeal against conviction. 

42.I further refused leave to the 1^st applicant to appeal against sentence.  No grounds were advanced by him in support of his application, nor can it be said that the sentence imposed was manifestly excessive or wrong in principle.

43.I refused leave to the 2^nd applicant to appeal against sentence.  I do not find that the combining of the proceedings provides the 2^nd applicant with a reasonably arguable ground in an appeal against sentence.  He pleaded guilty to the offence but sought to contest certain facts pertaining to his involvement in the crime that he admitted he had committed.  He agreed that the Newton hearing be conducted during the course of the trial of the 1^st and 3^rd applicants.  He was legally represented throughout the proceedings and was able to challenge and test the evidence relevant to him in relation to the facts that he was contesting.  I should point out that the main fact in contention was whether he was the central organiser in receiving the unauthorised entrants in Hong Kong which the judge found was clearly the case based on the call and text message records on his mobile telephone.  I do not find his grounds of appeal to be reasonably arguable and can find no cause for complaint against the sentence that was imposed upon him.

44.For the reasons given, I grant leave to the 1^st and 3^rd applicants to appeal against conviction on the sole ground concerning the combining of the proceedings, and I refuse leave to the 1^st and 2^nd applicants to appeal against sentence.  As a consequence, I grant the 1^st and 3^rd applicants a legal aid certificate so that they can be legally represented at the hearing of the appeal.

45.The applicants are reminded of their right to renew their applications for leave (which have been refused) to the Court of Appeal, but they are also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending their respective appeals, if the Court were to come to the view that there was no justification for the renewal of their respective applications.

Ms Laura Liu, PP of Department of Justice, for HKSAR

The 1^st, 2^nd and 3^rd applicants appeared in person