HKSAR v. Ahmed Sani Salman

CACC 334/2017

[2019] HKCA 43

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 334 OF 2017

(ON APPEAL FROM DCCC NO 808 OF 2016)

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Before:  Hon Macrae VP and Zervos JA in Court

Date of Hearing:  19 December 2018

Date of Judgment: 8 January 2019

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J U D G M E N T

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

1.This is an appeal against sentence after leave was granted to the appellant by the Single Judge on the ground that the overall reduction for his guilty plea and assistance to the authorities may not have been appropriate in the circumstances of the case. At the conclusion of the hearing, we reserved our judgment which we said we would hand down in due course. This we now do.

The conviction and sentence

2.On 25 July 2017, the appellant was convicted on his own plea by District Court Judge Dufton (the judge) to one charge of trafficking in a dangerous drug, namely 73.0 grammes of a solid containing 41.8 grammes of cocaine (Charge 1); one charge of possession of dangerous drugs, namely 0.20 grammes of the powder containing 0.11 grammes of cocaine and 3.00 grammes of a crystalline solid containing 2.95 grammes of methamphetamine hydrochloride, commonly known as Ice (Charge 2); and one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug, namely an inhaling device for Ice (Charge 3).

3.On 29 September 2017, the judge sentenced the appellant to an overall term of 5 years and 9 months’ imprisonment.

The brief facts

4.The facts of the case giving rise to the offences can be briefly stated as follows.  The appellant was seen by police officers coming out of a flat with a black bag and a plastic bottle.  When the appellant saw the police officers, he discarded these items and tried to rush back into the flat.  He was intercepted by the police officers who searched him and subsequently his flat.  The dangerous drugs, the subject matter of Charge 1, were found in the black bag he was carrying and in a transparent plastic bag on a table inside the flat.  Also found in the transparent plastic bag were 86 resealable plastic bags and an electronic scale.  The dangerous drugs, the subject matter of Charge 2, were found in two pieces of tissue paper and a $20 banknote that were concealed in the underpants the appellant was wearing.  The apparatus for the inhalation of a drug, the subject matter of Charge 3, was the plastic bottle that the appellant was carrying which had a straw containing a liquid with traces of Ice.

5.The street value of the cocaine and Ice were $77,738 and $903 respectively.

6.The appellant made no admissions upon his arrest but eventually when he pleaded guilty to the offences he accepted that he was trafficking in the dangerous drugs, the subject matter of Charge 1, and in possession of the dangerous drugs and the apparatus, the subject matter of Charges 2 and 3 respectively.

The appellant’s background and mitigation

7.It transpired that the appellant was a Form 8 recognizance holder and on police bail in relation to an offence of possession of a dangerous drug when he committed the present offences.  He also had a criminal record, which dates back to June 2000 when he was convicted of the offence of breach of condition of stay and sentenced to 1 month’s imprisonment suspended for 2 years.  Thereafter, he was convicted of a series of offences relating to his immigration status or use of a motor vehicle.  From 2011 to 2016, he had been convicted of a total of 4 drug-related offences, including an offence of trafficking in a dangerous drug in 2011, for which he was sentenced to 27 months’ imprisonment.

8.It was submitted in mitigation that the appellant came to Hong Kong in 2000 because of the murder of his father in Pakistan.  However, in 2002, the appellant was deported to Pakistan but found living there intolerable. He therefore arranged to return to Hong Kong in 2003.  He subsequently filed a torture claim which was the subject of appeal at the time of sentence.

The reasons for sentence

9.The judge sentenced the appellant as follows. 

10.On Charge 1, he adopted a basic starting point of 7 years and 4 months’ imprisonment for trafficking in 41.8 grammes of cocaine, applying the sentencing guidelines of R v Lau Tak Ming [1990] 2 HKLR 370.  He enhanced the starting point by 2 months for the appellant’s persistent offending, 3 months for having committed the present offences whilst on bail, and 6 months for his status as a Form 8 recognizance holder at the time of the offence, resulting in a final starting point of 8 years and 3 months’ imprisonment. 

11.On Charge 2, he adopted a starting point of 15 months’ imprisonment for possession of 2.95 grammes of Ice.  For the purposes of sentencing the appellant for this offence, he disregarded the small quantity of cocaine found in his underpants.

12.On Charge 3, he adopted a starting point to 3 months’ imprisonment.

13.The judge then addressed the level of discount he should afford the appellant for his guilty plea. For this purpose, he noted the following chronology of events.  On 23 September 2016, the appellant first appeared before the District Court who indicated that he would plead not guilty to the charges.  The case was adjourned to 15 February 2017 for a three-day trial.  On 15 February 2017, the trial was adjourned at the request of the defence to 30 March 2017 for mention.  On 30 March 2017, the appellant confirmed that he would plead not guilty to the charges and the case was adjourned to 24 July 2017 for a five-day trial.  On 24 July 2017, the appellant indicated that he would plead guilty to the charges and a plea was taken the following day.

14.Taking into account the chronology of events and the arguments submitted by defence counsel on this point, the judge concluded that the appellant was not entitled to a full one third discount because of his untimely plea, and the inconvenience and disruption he had caused as a consequence.   He considered that a discount of 20% for his plea of guilty was appropriate, following the sentencing guidelines of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, at paragraph 223.

15.The judge then explained that he took into account the appellant’s pleas of guilty and that he was to be given a “meaningful” discount from the maximum jurisdiction of the court and all the mitigating circumstances.  He had not stated specifically in his reasons for sentence the nature of the mitigating circumstances that warranted a “meaningful” discount or the level of discount that should be given for these factors.  No criticism can be levelled against the judge for having done so because the subject of the appellant’s assistance to the authorities at that time was sensitive, requiring that it be handled with an appropriate degree of care and circumspection.  There had been a Sivan hearing on 25 August 2017, following the appellant’s plea of guilty, to ascertain the value of the assistance that he had rendered to the authorities. 

16.We were informed at the outset of this hearing that the assistance rendered to the authorities by the appellant was no longer a sensitive matter.   For this reason, we are able to discuss the subject in considerable more detail than the judge was able to do. 

17.The judge sentenced the appellant to 5 years and 9 months’ imprisonment on Charge 1, 10 months’ imprisonment on Charge 2, and 2 months’ imprisonment on Charge 3.  In the result, he gave the appellant a discount from the relevant starting points of 30% in respect of Charge 1, and 33.3% in respect of Charges 2 and 3.

18.After consideration of the totality principle, the judge ordered that all sentences were to be served concurrently with each other.

The appellant’s submission

19.Mr James Sherry, for the appellant, makes no complaint about the basic starting points adopted by the judge on each charge and the enhancements he gave on Charge 1, resulting in a final starting point of 8 years and 3 months’ imprisonment.  Rather, he complains that the judge erred in not apportioning the discount to the sentences for the appellant’s assistance to the authorities and for the jurisdictional factor, and not giving a sufficient overall discount to his sentence. 

20.Mr Sherry points out that the judge gave an overall discount of 30% from the starting point on Charge 1 which included the 20% discount for the appellant’s guilty plea.  But in relation to Charges 2 and 3, he gave an overall discount of 33.3% from the respective starting points which also included the 20% for the appellant’s guilty plea.  He complains that the judge did not explain in relation to Charge 1 how the additional 10% discount had been apportioned for the appellant’s assistance to the authorities and the jurisdictional factor.  His argument is a straightforward one.  As the jurisdictional factor is only relevant to Charge 1, he queries why the judge did not give the appellant at least the same discount of 13.3% which he gave to the other two charges for what must have been in relation to the appellant’s assistance, and why he gave a lesser discount of 10% on Charge 1 when an adjustment had to be also made for the jurisdictional factor.

21.Mr Sherry submits that the judge should have passed a sentence of 5 years and 2 months’ imprisonment.  He explains how this sentence is arrived at in his written submissions as follows:

“34. It is submitted that the judge should have applied the jurisdictional discount after the 20% given for pleading guilty. The sentence would then be:

(1) Starting point of 8 years and 3 months (99 months);

(2) Less 20% for PG is 79.2 months (6 years and 6 months);

(3) Less 6 months for the jurisdictional factor is 6 years (72 months); and

(4) Less a further 13.3% for assistance given to the Police arriving at a sentence of 62.4 months (5 years and 2 months).”

We note that item (2) should in fact be 6 years and 7 months.

The respondent’s submission

22.Mr Franco Kuan, for the respondent, submits that a meaningful discount of 10% was given to the appellant in relation to Charge 1, consisting of 7% for the appellant’s assistance and 3% for the jurisdictional factor.  Of the appellant’s assistance, he submits that an allowance of 7% is uncontentious and follows the additional discount suggested in Z v HKSAR [2007] 10 HKCFAR 183.  Of the jurisdictional factor, he submits that an allowance of 3% (about 3 months) is a meaningful discount in the circumstances of the case.

23.In support of his submissions, Mr Kuan argues that the 13.3% discount awarded to Charges 2 and 3 was wrong and should have been 7% because the appellant’s assistance was the only relevant mitigating factor in relation to these charges.  The jurisdictional factor did not come into consideration because the starting points were within the court’s jurisdictional ceiling.  He notes that this made no difference to the total sentence, and therefore did not affect its correctness, since the sentences on the two charges were ordered to run concurrently to the sentence on Charge 1.

Discussion

24.The judge, having decided, correctly in our view, that the appellant should be given a 20% discount for his guilty plea, had to next decide what discount he should give the appellant for the assistance he had rendered to the authorities and ensure that the discounts were meaningful in light of the jurisdictional limit of the court. 

The discount for assistance

25.As the judge had only allowed the appellant a 20% discount for his guilty plea, this was not the usual situation where a discount for this category of assistance would normally be attached to a one third discount for a guilty plea, and fall within the range of 33.3% to 40%.

26.In Z, Li CJ discussed and explained the policy in relation to the range of discounts to be afforded to a defendant for having rendered assistance to the authorities.  Having reviewed the authorities, he noted at paragraph 23 the discounts approved by the Court of Appeal:

“... It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40% (including the one-third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at p340. (Compare its earlier decision in HKSAR v Ng Shek Yu (unrep., CACC No 178 of 2000, [2001] HKEC 243) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.) Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty). HKSAR v Lee Yat Fan (unrep., CACC No 414 of 1999, [2001] HKEC 662). Where the level of co-operation is such as to place the appellant in the ‘supergrass’ category, a maximum discount of two-thirds has been used. R v Chan Fu Kui [1986] HKLR 967 at p968, HKSAR v Ng Shek Yu (at p3).”

27.It is clear from this passage that, as a general rule, the usual discount range for assistance provided by a defendant which does not involve him testifying is between 33.3% and 40% and where it does involve him testifying is between 33.3% and 50%.  However, as is apparent, these percentage discount levels are based on a defendant having received a one third reduction for a guilty plea.  For a more detailed analysis and discussion of the relevant considerations of these discount ranges, see the judgment of McWalters JA in HKSAR v Lo Sze Tung Stephanie, CACC 190/2017, 25 July 2018, [2018] HKCA 421.

28.In the course of the Sivan hearing, the judge in discussion with counsel evaluated the assistance rendered by the appellant to the authorities.  He determined that the assistance provided by the appellant fell into the category where a defendant had provided information that was useful without giving evidence.  He referred to Z where it was noted that for this category of assistance a usual discount of 40%, including the one third reduction for guilty plea, had been applied.  It would seem from the comments of the judge that he determined a discount of 7% should be applied in this case.  This represented the difference between 33.3% (the one third discount for a guilty plea) and 40%, namely 6.7% which he rounded up to 7%.  He then reasoned, by subtracting the one third discount for a guilty plea (33.3%), that if the discount was 45%, the discount for assistance was 12%, and if it was 50%, the discount for assistance was 17%. 

29.We consider that in the circumstances of this case, and given that the judge had awarded a 20% discount for the appellant’s plea of guilty, that a 7% discount for the nature of the assistance rendered to the authorities was appropriate.

30.We agree with Mr Kuan’s submission, and find that the judge erred in giving the appellant an additional discount of 13.3% in relation to Charges 2 and 3, when it should have been 7% for his assistance to the authorities as explained by the judge in the Sivan hearing.  This means that the appellant’s sentence on both charges should have been reduced by 27%, and not 33.3%.  Accordingly, the starting point on Charge 2 of 15 months’ imprisonment will be reduced by 27% to 11 months’ imprisonment, and the starting point on Charge 3 of 3 months’ imprisonment will be reduced by 27% to 2 months’ imprisonment (the actual result is 2.19 months).  This technical correction only results in a different sentence by an extra one month in relation to Charge 2.  These sentences were ordered by the judge to run concurrently with the sentence on Charge 1 and we will do the same, although the judge would not have been criticised had he made some provision for partially consecutive sentences.  The end result is that the correction will have no bearing on the overall sentence because these sentences were made concurrent to the sentence on Charge 1.

“Meaningful discount” for guilty plea

31.Under section 82 (2)(a) of the District Court Ordinance, Cap 336, a District Court judge may not impose a sentence of imprisonment in respect of any one offence which exceeds 7 years.  If a judge imposes terms of imprisonment which are consecutive in whole or in part, then the aggregate of those terms must likewise not exceed 7 years.

32.The judge arrived at a starting point of 8 years and 3 months’ imprisonment on Charge 1, which was outside the limits of the court’s jurisdiction.

33.The judge took into account the ceiling of his jurisdiction when imposing the sentence on Charge 1.  He said:

“11. A starting point of 8 years and 3 months’ imprisonment exceeds the maximum jurisdiction of the Court of 7 years’ imprisonment. The defendant is therefore somewhat fortunate the case was not committed to the High Court for trial. I am nevertheless satisfied that I can take a starting point in excess of the jurisdiction so long as the sentence imposed reflects a meaningful discount from the maximum of 7 years.”

34.In determining what was a meaningful discount, the judge considered the cases of HKSAR v Li Yan [1998] 4 HKC 12; HKSAR v Lee Tsang Lin, CACC 53/2002; HKSAR v Lau Bing, CACC 138/2008; and HKSAR v Cheung Kwok Yip, Peter, CACC 268/2009.

35.In Li Yan, the Court of Appeal explained that some adjustment had to be made, by way of a further meaningful discount, in relation to a one third discount for a guilty plea, when the final starting point was beyond the seven years’ maximum.  The Court said at 15A-D:

“… justice requires a further meaningful discount should be given from the maximum of seven years after plea in those cases which would attract seven years or more as the proper sentence which the court ought to impose. This is to give the accused some benefit for his plea of guilty.

But neither policy, nor justice require that a one-third discount for a plea should be given from the maximum of seven years regardless of the proper starting point.  In cases where the appropriate sentence to be impose after discount is seven years or more, a meaningful discount from seven years should be given in order to give some benefit for the plea.  The same applies if the appropriate sentence is so near seven years that the discount is not meaningful.  As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than one year be so considered.”

36.Li Yan was decided when defendants would usually receive a discount of one third for a guilty plea, no matter when it had been entered prior to or at the first day of trial.  However, since the Court of Appeal decision in Ngo Van Nam defendants will only receive a full one third discount for a guilty plea if they enter it at the first opportunity.  Otherwise there is a sliding scale up to the full one third discount for a guilty plea, depending on the stage and circumstances when it was entered.

37.Mr Kuan, whilst acknowledging the principle in Li Yan, submits that it should now be read in light of Ngo Van Nam, and therefore the suggested reduction of at least one year should be significantly qualified.  He supports his submission by illustrating that if the one-year discount was generally applied, a defendant who pleaded guilty at the earliest opportunity (receiving a full one third discount) would receive the same discount as a defendant who pleaded guilty on the first day of trial (receiving a percentage discount less than the one third discount).  He is right in the point that he makes that a different level of adjustment should be made for the jurisdictional factor when addressing different levels of the discount for a plea of guilty.  However, it needs to be borne in mind that the guidance given by the Court of Appeal in Li Yan was in the context of a defendant receiving a one third discount for a guilty plea and, even then, although rare, a discount of less than one year would be meaningful.  See HKSAR v Lee Tsung Lin, CACC 53/2002, 7 August 2002, unreported, at paragraphs 16 and 17.

38.What is meant by a “meaningful reduction” is probably best illustrated by the way the matter has been addressed in relevant cases.

39.In Li Yan, the trial judge sentenced the applicant to 7 years’ imprisonment, the limit of his jurisdiction, for two offences of robbery and one offence of remaining in Hong Kong without authority.  For the two offences of robbery the trial judge selected 9 years as the starting point.  He considered that the appropriate sentences were 5 years for the first robbery and 6 years for the second, but taking into account totality he reduced the combined sentences of 11 years to 9 years.  He then gave a one-third discount for the plea of guilty and reduced the total to 6 years.  On the principle that the sentence for being an illegal immigrant should normally be 15 months consecutive to any other sentence imposed, the trial judge added 1 year to the 6 years and passed the sentence of 7 years’ imprisonment.

40.The Court of Appeal considered that the totality of 9 years adopted by the trial judge was manifestly excessive, and that a totality of 7 years would have been appropriate.  After discount of one-third for the plea of guilty, the Court considered that the proper sentence for the robbery offences would have been 4 years and 8 months.  The sentence of 15 months for the immigration offence was made consecutive and resulted in a sentence of 5 years and 11 months’ imprisonment.  This resulted in a reduction of 13 months below the jurisdictional limit which the Court considered involved a meaningful discount from the 7 years’ maximum.

41.In Lee Tsung Lin, the trial judge adopted a starting point of 7½ years’ imprisonment for numerous offences involving forged credit cards.  This was reduced to 5 years after the trial judge had applied a discount of one-third for the applicant’s plea of guilty.  The trial judge then enhanced the sentence by 25% under the Organized and Serious Crimes Ordinance, Cap 455, which brought it to 6 years and 3 months’ imprisonment.

42.The Court of Appeal considered that the reduction of 2 years below the 7 years’ limit, that is from 7 years to 5 years, was “unarguably meaningful” and the resultant sentence represented a reduction of 9 months from the jurisdictional limit, which in the Court’s opinion was meaningful in the context of the case.  It was noted by the Court that this was one of those cases which fell within the category referred to in the case of Li Yan where a reduction of less than one year could be considered.

43.It would be rare indeed if the starting point for a sentence greatly exceeded the jurisdictional limit of the court.  This is because one of the key factors to be taken into account by the prosecuting authority when selecting the venue of trial for a case, is the likely sentence upon conviction.  Critical to this issue is the jurisdictional limit of the court under consideration.  It is therefore important that the prosecuting authority carefully and thoroughly considers the venue of trial of a case, otherwise it may result in a defendant not being correctly punished because his case has been wrongly placed before an inappropriate court. This would not serve the interests of justice.

44.When the Court in Li Yan stated that a reduction of less than one year would rarely be considered, it was taking into account the fact that a defendant would rarely have imposed on him a starting point beyond the court’s jurisdictional limit.

45.By way of example, if a defendant received a starting point of 7 years which was reduced by one third for a guilty plea, the resultant sentence would be 4 years and 8 months.  On the other hand, in an extreme case where the defendant received a starting point of 9 years, the resultant sentence would be 6 years, which is one year below the 7 years’ maximum.  It was on this basis that the Court said for a one third discount to be meaningful, at least a reduction of 1 year from the 7 years’ maximum should be considered.

46.It is clear to us that the judge was very much guided by what was said in Li Yan when he passed the sentence on the appellant of 5 years and 9 months’ imprisonment.  He took into account the percentage discounts for the appellant’s plea of guilty and the assistance he rendered to the authorities.  Even though the starting point was beyond his jurisdictional limit, he arrived at a sentence with a resultant reduction of 15 months below the jurisdictional limit, which was a meaningful discount from the 7 years’ maximum.

47.When properly understood, the guidance given by the Court in Li Yan was not suggesting that at least a discount of one year should be given to a sentence where the starting point is 7 years or more.  As we have already pointed out, the guidance given was in the context of a one third discount and, in such circumstances, it would be expected that for the discount to be meaningful it would be at least one year below the 7 years’ maximum.  The judge was fully appreciative of the significance of the guidance in Li Yan, when, after taking into account the discounts for the guilty plea and the assistance to the authorities, he passed a sentence of 5 years and 9 months’ imprisonment which reflected a 15 months’ reduction from the 7 years’ maximum.  In our view, the judge took the correct approach and arrived at a just sentence.

48.We note in passing that on Mr Sherry’s proposed method for sentencing the appellant, where an allowance of 7% is provided for the appellant’s assistance, a sentence of 5 years and 7.9 months’ imprisonment would result.

Conclusion

49.We accept the submission that the sentences on Charges 2 and 3 were in error for the reasons provided in paragraph 30 above. However, this will make no difference to the overall sentence of 5 years and 9 months’ imprisonment, which sentence stands, and the appeal is dismissed.

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

Mr James Sherry, instructed by K Y Lo & Co, for the appellant