HKSAR v. Mohammad Shahnawaz Ali

CACC 288/2018

[2019] HKCA 1321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 288 OF 2018

(ON APPEAL FROM HCCC NO 84 OF 2018)

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J U D G M E N T

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Introduction

1.The applicant was charged with a single count of trafficking in a dangerous drug, namely 997 grammes of a solid containing 847 grammes of cocaine.  He was charged together with another defendant, who faced a separate count for a similar quantity of drugs. 

2.On 5 March 2018, they both pleaded guilty to the count they each faced in the Magistrate’s Court and were committed for sentence to the Court of First Instance. 

3.On 29 May 2018, they appeared before Campbell-Moffat J (the judge) for sentence, who adjourned the proceedings for inquiries to be made of the assistance alleged to have been provided by the other defendant to the authorities.

4.On 12 September 2018, the judge sentenced the applicant to 15 years’ imprisonment and the other defendant to 12 years and 10 months’ imprisonment.

5.On 22 October 2018, the applicant filed a notice of application for leave to appeal against sentence out of time.

6.At the leave hearing, the applicant appears in person, having had legal assistance refused by the Legal Aid Department on 17 December 2018 and the Bar Free Legal Service Scheme on 7 March 2019.

The brief facts

7.The facts agreed by the applicant when he pleaded guilty can be summarised as follows.  On 25 January 2017, Customs officers intercepted the applicant and the other defendant at Lo Wu Control Point for customs clearance.  A search of the other defendant revealed that he had strapped to his body 6 packets of a total quantity of 997 grammes of a solid containing 834 grammes of cocaine.  Similarly, a search of the applicant revealed that he had strapped to his body or hidden on him 5 packets of a total of 997 grammes of a solid containing 847 grammes of cocaine.  The estimated street value of the drugs seized from the applicant was $905,276.

8.Upon arrest and under caution, the applicant claimed that the substance found on him was “gold cleaning powder” which was given to him by the other defendant.  He said he was promised by the other defendant that he would receive a reward of $2,000 for delivering the substance from mainland China to Hong Kong. 

9.In the meantime, the other defendant revealed that an Indian friend whose name was “Tony” arranged for him and the applicant to transport the drugs into Hong Kong for reward.

10.The applicant in a subsequent video-recorded interview claimed that he been living in mainland China and was in the mobile telephone business.  He said he travelled to Hong Kong once or twice a month. He claimed that an unknown man gave him the substance in mainland China and in the presence of the other defendant.  The other defendant told him that the substance was “gold polish powder”.  He claimed that he never checked the substance and that he was to receive his reward through the other defendant once he crossed the border into Hong Kong. 

11.The mobile telephones of the two men were checked and revealed that they frequently exchanged messages between them. Their travel records also revealed that they frequently travelled between mainland China and Hong Kong. 

12.It was an admitted fact that the applicant’s fingerprint was found on one of the bags containing the drugs seized from the other defendant.

13.It seems that the legal representatives of the applicant proposed to the prosecution that he would plead guilty to trafficking for the drugs found on him so long as they did not proceed against him in relation to the drugs found on the other defendant, which had his fingerprint on one of the packets. 

14.The applicant admitted when he pleaded guilty that he was trafficking in the drugs in question.

The sentencing of the applicant

15.In sentencing the two men, the judge adopted a starting point of 21 years and 3 months’ imprisonment which she enhanced for the international element by 1 year and 9 months to 23 years’ imprisonment.  As both men had participated in Father John Wotherspoon’s anti-drug campaign, she reduced their respective sentences by 6 months to 22 years and 6 months’ imprisonment.

16.It transpired that the other defendant cooperated with the authorities which resulted in the judge giving him a discount to his sentence of more than the one third for his guilty plea.  She sentenced him to 12 years and 10 months’ imprisonment.  This was the equivalent of a 43% discount.

17.The judge gave the applicant a one third discount for his guilty plea and sentenced him to 15 years’ imprisonment.

18.The judge stated very clearly in her reasons for sentence that she did not accept that the applicant’s assistance to the authorities was genuine and that the nature and timing of his assistance was of “no practical assistance”.

The grounds of appeal

19.The applicant in his home-made grounds of appeal complains that it was unfair for the judge to impose the maximum sentence of 23 years’ imprisonment on him as he was cooperative with the authorities and assisted in the campaign against drug trafficking.  He claims he deserves a 50% discount to his sentence.  He complains his sentence is “too long” compared to other cases.  He also complains that his counsel did not submit relevant mitigating factors to the judge on his behalf. 

20.The applicant has also submitted a letter received on 16 July 2019 in which he pleads for a reduction to his sentence, although blaming the other defendant for having got him involved in the offence.

Discussion

21.There is no substance to his complaints. 

22.The judge did not impose a maximum sentence of 23 years’ imprisonment.  She adopted a starting point of 21 years and 6 months’ imprisonment which she enhanced for the international element to 23 years’ imprisonment.  This was done in accordance with the relevant sentencing tariffs: HKSAR v Abdallah [2009] 2 HKLRD 437; and HKSAR v Chung Ping Kun, unreported, CACC 85/2014.  The applicant was given 6 months’ discount to his sentence for his participation in Father Wotherspoon’s anti-drug campaign which exceeded the maximum discount of 3 months: HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88; and HKSAR v Perez Peraza Zuleyma Coromoto, unreported, CACC 162/2008.

23.Counsel for the applicant submitted mitigation on the applicant’s behalf before the judge, addressing the appropriate sentencing tariffs and reductions applicable to his case.  He mentioned that the applicant had indicated a willingness to cooperate with the Customs officers by participating in a controlled delivery shortly after his arrest.  It seems that following his arrest, the applicant told the police that he was expecting a telephone call from a friend and he indicated his willingness to participate in a controlled delivery operation.  No telephone call was received and the matter could not be taken any further. 

24.The applicant made a statement to Customs officers, but this was done nearly 18 months after the offence, and 9 months after the other defendant made a statement to Customs officers and indicated he would testify against the applicant.  See Chronology of Events – MFI1.

25.The judge on her assessment of the material before her had grave doubts as to the genuineness of the applicant’s purported assistance to the authorities.  More importantly, she found the applicant’s assistance was of “no practical assistance.”

26.The applicant’s comparison with other cases is anecdotal and of no value.  The question is whether the judge fell into any appealable error in sentencing the applicant, which would provide reasonable arguable grounds to appeal against his sentence.

Conclusion

27.I do not consider that there are reasonable grounds of appeal against sentence in this case and the application for leave to appeal against sentence is accordingly refused.

28.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr David Chan, SADPP, of the Department of Justice, for the respondent

The applicant appeared in person