HKSAR v. Musah Hakeem Tahiru Alias Tahiru Musa Hakem
Read the full judgment text of CACC 404/2017 on BabelCite. This Court of Appeal judgment was delivered on 23 November 2020.
1. The applicant was charged with one count of trafficking in 256.73 grammes of cocaine, 18.76 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 1.06 grammes of herbal cannabis (“Count 1”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He also faced one count of dealing with property known or believed to represent the proceeds of drug trafficking in respect of US$736,100, HK$24,005.10 and EURO€1,170 (“Count 2”), contrary to sections 25(1) and
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CACC 404/2017 [2020] HKCA 961 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 404 OF 2017 (ON APPEAL FROM HCCC 464 OF 2015) ------------------------
------------------------ Before: Hon McWalters JA in Court Dates of Hearing: 25 September and 12 November 2020 Date of Judgment: 23 November 2020 __________________________ J U D G M E N T __________________________ 1.The applicant was charged with one count of trafficking in 256.73 grammes of cocaine, 18.76 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 1.06 grammes of herbal cannabis (“Count 1”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He also faced one count of dealing with property known or believed to represent the proceeds of drug trafficking in respect of US$736,100, HK$24,005.10 and EURO€1,170 (“Count 2”), contrary to sections 25(1) and (3) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405 (“DTROP”). He pleaded not guilty to both counts and was tried in the Court of First Instance before Zervos J (“the judge”), as Zervos JA then was, together with a jury. 2.On 28 April 2017 he was convicted of Count 1 but acquitted of Count 2 and on 7 December 2017, the judge sentenced the applicant to 14 years and 9 months’ imprisonment in respect of Count 1 and made a confiscation order against the applicant under section 3(6) of the DTROP in respect of the property that was the subject of Count 2, with a default penalty of 5 years’ imprisonment. This property, once converted into Hong Kong dollars came to HK$5,765,749.40. 3.By a Notice of Application for Leave to Appeal (Form XI), the applicant applied for leave to appeal against his conviction and his sentence. His application for leave to appeal against this sentence included the confiscation order as, by section 3(11) of DTROP, the confiscation order is deemed to be a sentence for appeal purposes. 4.At the hearing of the application I reserved my judgment. This is my judgment. A. The police investigation 5.The police conducted undercover controlled buy operations on three separate days in Wan Chai. They turned their investigation overt shortly after midnight on 29 January 2015, at which time the applicant was arrested with three other African men for drug trafficking in Wan Chai. 6.Whilst no drugs were found on the applicant at the time of his arrest, the police seized from him 2 mobile phones, the sum of HK$9,005.10, a bunch of 3 keys and a resident card for Room 1, Flat A, Hing Fat Building, Yau Ma Tei (“Room 1”) which was his place of residence. It was an admitted fact that he had been the tenant of Room 1 for more than a year at the time of the arrest. The drugs and monies that are the subject of the two counts were found in this room. 7.As a consequence of these discoveries the prosecution decided not to proceed against the applicant for his alleged street level drug trafficking activity in Wan Chai but to prosecute him only in respect of the seizures from his Room 1. 8.The three men with whom he was allegedly jointly trafficking drugs in Wan Chai were tried separately in mid-2016 in DCCC 505/2015 on 5 charges of drug trafficking. Although the applicant was not charged with these offences, he was named as an accomplice in four of the charges (Charges 2 to 5), which were drug trafficking charges said to have taken place on 21 and 29 January 2015 respectively. B. The applicant’s trial B.1 The prosecution case 9.The applicant is a person of a Ghanaian nationality, who had applied for asylum and was enjoying his liberty in Hong Kong with the benefit of an Immigration Department Form 8 recognisance. 10.It was the prosecution case that after the applicant had been arrested in Wan Chai, he was taken by a team of five police officers, led by PW4 to his residence, Room 1. With his consent, they gained access to it with his resident card and one of the keys that had been found on him. During their search of Room 1 the police found the drugs that are the subject of Count 1 hidden in the suspended ceiling of the living room. They had a total street value of HK$470,885. 11.The police also found concealed in the suspended ceiling a quantity of unused resealable plastic bags. It was an admitted fact that a mixture of human DNA from at least 2 sources, one of which was from a male other than the applicant, was found on the outer surface and the opening flap of one of the unused resealable plastic bags (Exhibit 29), which itself contained 45 transparent resealable plastic bags, that had been found in the suspended ceiling. 12.In addition, Exhibit P35, which was a blue and white plastic bag containing 276 smaller resealable plastic bags (Exhibits P36 – P43), and a substantial quantity of different currencies which are the subject of Count 2, were seized from different locations within the applicant’s bedroom. 13.However, the applicant’s fingerprints and DNA were not found on any of the drugs or the plastic bags that were used to contain the drugs. 14.The applicant took part in two video records of interview (“VRIs”) on 30 January 2015 the voluntariness of which were not challenged. In these VRIs he confirmed that the police had searched his home with his consent but he denied knowledge of the drugs “hidden” in the suspended ceiling. He said he was living in Room 1 with his friend, Shamshudin who was also a Ghanaian, and his friend would go to China for business sometimes. He last saw him two weeks or one month ago. He said amongst the US currency seized US$90,000 belonged to his friend Sani, and the rest of the US currency and HK$15,000 were given to him by his girlfriend, a woman called Joanne who was now living in Australia. He did not have a contact number for Joanne. He added that the euros were sent to him by his sister so that he could purchase mobile phones and ship them to Germany. 15.At first he said he did not understand when the interviewing officer asked him about the unused plastic bags, but later said that they belonged to his friend who would buy them and ship them to China and he did not know what they were for. He believed the drugs in the ceiling belonged to Shamsudin because in the past he had once seen Shamsudin bring some suspicious-looking packages to Room 1 and he had told him not to bring them again. His other friends would occasionally visit him and stay in Room 1 for a few days. B.2 The defence case 16.The applicant elected to give evidence and called one witness. 17.The applicant claimed that he met Joanne at the end of 2011 and shortly after they started a romantic relationship. At one point he told her that as soon as his torture claim was finalised he would want to start a business by exporting electronic goods from Hong Kong to Ghana. In order to do so, he had once asked her for US$1 million. In return, Joanne provided him with US$700,000 cash in early 2013, which he had kept at home as he did not have a bank account in Hong Kong. However, he had no way to contact her. 18.On the night of his arrest, he was going to send the HK$15,000 found on top of the refrigerator to his family in Ghana. Coincidentally, Sani also gave him US$90,000 in a plastic bag for his safekeeping, which he stored inside the wardrobe of his bedroom before he went to Wan Chai to meet his friend, Mr Jordan, that night. He claimed that Exhibit P35 and its contents were not in his bedroom when he went out. 19.The applicant did not dispute that he was arrested in Wan Chai before he was taken back to Yau Ma Tei for a house search. However, he took issue with how his arrest was effected by the police officers and which police officers were involved. In particular, he vigorously denied that PW4 was present at the search of his residence. He also claimed that the police did not allow him to be present in the flat during the search, and he disagreed with where the police alleged the drugs and the cash were found. He said he was not shown any of these exhibits when they were discovered at the scene, except for a bag of African food. 20.In summary, the defence case at trial was that the applicant had no knowledge of the drugs kept in the suspended ceiling. He suspected that the drugs and the resealable plastic bags, if in fact they were found in the manner alleged by the police, belonged to Shamsudin or were intentionally left behind by him in order to incriminate the applicant because of a personal grudge that he had with him. Alternatively, there was a possibility that they were hidden there by a former tenant whose identity was not known. 21.DW2 was the applicant’s friend, Mr Jordan. He also came from Ghana and was also a Form 8 recognisance holder. He came to know the applicant in 2010 and started playing football with him in 2014 or 2015. He said the applicant once pointed out to him a European white lady and said she was his girlfriend, but he did not formally introduce her. He said he had never heard of the names of Sani and Shamsudin from the applicant. C. The sentencing of the applicant 22.On 28 April 2017, the applicant was found guilty by the jury on Count 1, but not guilty on Count 2. The case was then adjourned to 31 May 2017 for sentence in respect of Count 1. 23.On 31 May 2017, just before the judge proceeded to sentence the applicant, Ms Jennifer Fok appeared for the Secretary for Justice and made an application for a confiscation order pursuant to section 3 of the DTROP, in relation to the monies that are the subject of Count 2. Matters relating to the confiscation application occupied the court on a number of occasions after 31 May and the application did not conclude until 2 September 2017, at which time the judge reserved his decision on it. 24.After reserving his decision on the confiscation application the judge turned to the task of sentencing the applicant. The applicant’s trial counsel, Mr James McGowan, commenced his mitigation address and it continued over to 3 October 2017. C1. The mitigation 25.On 2 September 2017 Mr McGowan informed the judge of the applicant’s background and of his family’s rather challenging circumstances. The applicant, who was 44 years old at the time of sentence, had arrived in Hong Kong in 2007 and had remained here ever since. At the time of the present offence, he had five previous convictions of which two were drug-related. On 11 April 2011, he was sentenced in the magistracy to a total term of 12 months’ imprisonment in respect of one count of drug trafficking and one count of drug possession. Mr McGowan submitted that the drugs involved were small and urged the judge to treat the applicant as a man with no significant drug trafficking record. Mr McGowan suggested an appropriate mathematical starting point was something below 13 ½ years. 26.In a hearing on 3 October 2017 the judge raised with the parties the amount by which he should enhance his starting point to allow for the aggravating factor of the applicant having committed count 1 whilst awaiting the processing of his asylum claim. This appears to have been prompted by a relevant judgment of the Court of Appeal that had only recently been handed down.[1] 27.The judge also queried with Mr McGowan the role played by the applicant and whether it went beyond merely being a storekeeper of drugs to being a packager and distributor of drugs. 28.At the conclusion of the sentencing hearing the judge reserved his decision on the applicant’s sentence. C2. The judge’s Reasons for Sentence 29.On 7 December 2017 the judge sentenced the applicant. In his Reasons for Sentence the judge said that he would take into account only those facts that related to the applicant’s conviction on Count 1 and would not have regard to any finding that he might make in respect of the confiscation application. Also, he would ignore the negligible amount of herbal cannabis in sentencing the applicant. He said he would treat the Ice in question as cocaine and then apply the applicable tariff that is set out in R v Lau Tak Ming & Others[2], as confirmed in Attorney General v Pedro Nel Rojas[3]. 30.The judge found, contrary to the defence submission that the applicant was merely storing the drugs, that the applicant was performing “the principal role as a supplier and distributor of drugs”.[4] For an effective total of 275.49 grammes of cocaine, the judge said that an arithmetically calculated starting point was 13 years and 1 months’ imprisonment. 31.The judge then moved on to consider the aggravating features in the case. First, there was the applicant’s status as a Form 8 recognizance holder and for this the judge enhanced the starting point by 16 months after having regard to the Court of Appeal’s judgment in HKSAR v Mahabul Alam Khan[5]. 32.Second, there was the issue of the applicant’s previous conviction for drug trafficking in 2011. The judge said of this prior conviction:
He then enhanced the starting point of his sentence by 4 months to allow for this aggravating factor. 33.In the absence of any mitigating factor that would warrant any reduction from his final starting point, the judge sentenced the applicant to 14 years and 9 months’ imprisonment. D. The application for a confiscation order 34.After Ms Fok made the application for a confiscation order, Mr McGowan argued that the judge lacked jurisdiction to entertain it as the monies sought to be confiscated were the subject of Count 2, and in respect of this count the jury had acquitted the applicant. The verdict of the jury, so his argument went, meant that the jury could not be sure that the monies the prosecution now sought to confiscate were the proceeds of the applicant’s drug trafficking. On 17 August 2017 the judge dismissed Mr McGowan’s objection to the application proceeding and his reasons for so doing were included in his decision on the confiscation application which he delivered on 7 December 2017, immediately after sentencing the applicant. D1. The evidence on the application 35.In support of its application, the prosecutor relied on a statement made by Senior Inspector Cheng Ki Fung (“SI Cheng”), which was placed before the court pursuant to section 5 of the DTROP. The applicant also filed a statement and, in reply, SI Cheng filed a further statement. 36.The statements of SI Cheng set out the circumstances of the applicant’s prior drug-related convictions in 2011, his alleged involvement in drug trafficking activities in Wan Chai on at least four occasions between late 2014 and early 2015, and his present conviction of Count 1 and how the property that is the subject of Count 2 came to be found. 37.The applicant also tendered a statement and in it he denied having benefited from drug trafficking as reflected by the cash in his possession and claimed that the cash was given to him by his friend, Sani, and his girlfriend, Joanne. He placed reliance on the facts that when he was arrested in Wan Chai no drugs were found on him, nor was there any forensic evidence to link him to the drugs in the suspended ceiling of his residence. He emphasized that the presence of another unknown male’s DNA on one of the unused plastic bags that was together with the drugs would suggest the participation of someone other than himself. In the alternative he argued that the absence of weighing paraphernalia in Room 1 supported the finding that he was no more than a storekeeper of dangerous drugs and this lent support to his claim that the monies found in Room 1 were not the proceeds of drug trafficking. D.2 The judge’s reasons for making a confiscation order 38.The judge delivered his reasons for making a confiscation order on 7 December 2017. In deciding whether to make a confiscation order against the applicant, the judge noted the outcome of the trial in DCCC 505/2015, namely that the three accomplices were acquitted of the offences to which they had pleaded not guilty and that their acquittal was due to the District Court judge finding the prosecution evidence to be of questionable quality. He stated that because of the findings made by the trial judge in DCCC 505/2015, he would not rely on any of the materials in relation to what took place in Wan Chai during the police operation. 39.The judge disbelieved the applicant’s claim that he was given the large amount of US currency by Joanne and the US$90,000 by Sani. He noted, in particular, that the applicant failed to give details of Sani, Joanne or Shamsudin that would enable them to be contacted or identified. 40.The judge found that the evidence before him established that the applicant had been “heavily involved in the drug trade”[7] from at least his prior conviction in 2011 up to January 2015. He concluded that there was no support for the contention that the prosecution case, even if taken at its highest, would show no act of proven trafficking activity other than storing the drugs in Room 1, and the lack of forensic evidence against him and the absence of weighing paraphernalia in Room 1 at that time did not cause the judge to think otherwise. 41.The judge was satisfied, on the balance of probabilities, that the cash found in Room 1, and on the applicant at the time of his arrest, represented direct payments or rewards that he had received in connection with drug trafficking activities carried on by him or together by others. He further found that the foreign currencies represented payments or rewards that were originally in Hong Kong currency but which had been exchanged into foreign currencies, and that the Hong Kong currency that was seized was a direct form of payment or reward from drug trafficking activity. 42.Converting all the different currencies into Hong Kong dollars, the judge found that they amounted to approximately HK$5,765,749.40, and this sum represented the aggregate benefit that the applicant had received from his drug trafficking activities. He therefore ordered the applicant to pay that sum within one month failing which he would serve an in default period of 5 years’ imprisonment. E. The grounds of appeal 43.The applicant has filed grounds of appeal against both his conviction and sentence and in respect of his appeal against sentence he has filed grounds of appeal against the length of this sentence and the confiscation order. 44.In order to advance Grounds 1 and 3 of his appeal against conviction, the applicant filed a Notice of Motion to Adduce Fresh Evidence, pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221. The new evidence concerned the media reporting of his arrest and house search on 29 January 2015, and a DNA report compiled by Dr David Lane. All this new evidence, it was said, only became available to the applicant after his conviction and sentence. E.1 The appeal against conviction 45.The applicant, represented by Mr Andrew Bruce SC, advanced five grounds of appeal in his “Amended Perfected Grounds of Appeal”. 46.Ground 1 asserts that the credibility of the police officers who had testified at trial was doubtful as to the manner in which the house search was conducted and as to the provenance of Exhibits P35 and its contents P36 – P43. The applicant submitted that the media reporting threw considerable doubt on their testimony. The applicant referred to his affirmation to which he exhibited certain materials derived from the media reporting of his arrest. Mr Bruce submitted that this new evidence would demonstrate that there were other, additional, police officers present during the investigation other than those referred to in the course of the prosecution case. This, he argued, was evidenced by photographs from the newspapers and the video footage extracted from news report. The applicant was adamant that one of the photographs captured the moment he was being escorted out of the building by a police officer whose identity was not disclosed at trial, and the presence of this unidentified officer proved that there were more police officers involved than the police had claimed at the trial. 47.An attack was also mounted on the provenance of Exhibits P35 – P43 in view of their absence from the photos and footage of a police press conference that was held in respect of the seizures of that night. 48.Ground 2 asserts that the judge’s reply and direction to a question asked by the jury after they had commenced their deliberations was inadequate, “given the different standards applicable to the Defendant and the Prosecution witnesses.” The question asked by the jury was:
49.The applicant argued that the judge should have at least directed the jury to the effect that they might find those “apparently ancillary matters” helpful in determining the credibility of the witnesses, in particular the applicant, on the central issue of his knowledge of the drugs, and should have repeated the standard directions on how to deal with inconsistencies. 50.In Ground 3 the applicant complains that post-trial analysis by Dr Lane of the DNA samples found on the unused resealable plastic bag (Exhibit P29) revealed that there was a “moderately high” probability that the donor of the DNA sample was of “East Asian” origin and as such, could not have originated from the applicant, his alleged accomplices in DCCC505/2015 or Shamsudin as all of them were African. Whilst the DNA test result that had been conducted by the Government Chemist was before the jury by way of admitted facts, it was the applicant’s submission that it was unsatisfactory as it did not contain any opinion on the ethnicity of the DNA donor. Relying on Dr Lane’s conclusion, the applicant submitted that since all the police officers in the present case were “East Asians”, Dr Lane’s report, if accepted by the court, would tend to suggest a member of the police could have been the donor of this DNA segment. The applicant also asked the court to take into account the police officers’ refusal to provide DNA samples to Dr Lane for an exclusionary test to be done as evidence of their incredibility. 51.Ground 4 attacks the judge’s response to the jury’s request to look at the “resealable plastic bag” that had been shown to the applicant in the course of his VRI. Unfortunately, this particular bag had not been given any marking and so it was no longer possible to identify which particular bag it was, amongst all of the resealable plastic bags. The applicant submitted that, notwithstanding that it was impossible to identify the plastic bag, as the jury were apparently of the view that it was important to the issues of this case, the judge erred in not having at least replayed the relevant part of the VRI (in which the applicant was shown the particular plastic bag) to the jury before they were sent out again. 52.Ground 5 is a general complaint that the applicant’s conviction was unsafe and/or unsatisfactory. E.2 The appeal against sentence: (i) the period of imprisonment 53.In relation to his sentence, the applicant pleaded three grounds of appeal but at the hearing of the application he abandoned his Ground 1 which concerned the legal basis for the judge’s enhancement of his starting point for the aggravating factor of the applicant having committed the offence whilst at liberty pending the processing of his asylum claim. However, the applicant maintains his complaint that the amount of enhancement was excessive. 54.In his Ground 2 the applicant complains that the judge erred in treating the applicant as a “repeated offender”, in reliance on the judgment of the Court of Appeal in HKSAR v Chan Pui Chi[9], and further enhancing the starting point of his sentence without having received evidence on the seriousness of his previous drug trafficking conviction or his reoffending. Given that he was only sentenced to 12 months’ imprisonment at the magistracy, it followed that the trafficking offence for which he was sentenced must be minor and the judge was wrong to come to the conclusion that he did. 55.Ground 3 is simply that the applicant’s sentence was wrong in principle and/or manifestly excessive. E.3 The appeal against sentence: (ii) the confiscation order 56.In respect of the confiscation order, the applicant relied on five grounds of appeal. 57.Ground 1 complained that the judge erred in finding that all the monies seized from the applicant represented the proceeds of drug trafficking “because his reasoning relied on facts and circumstances which were not conclusions justified on the evidence available to him.” This ground particularises a number of conclusions reached by the judge and complains that the judge failed to articulate his reasoning for reaching these conclusions. 58.The conclusions particularised are:
59.Ground 2 asserts that the evidence in the trial and the verdict of the jury provided no basis for the judge to reach the conclusions set out in (a) to (d) of the first ground of appeal, as set out in the preceding paragraph. This was especially so given that there was no proven act of trafficking once the judge excluded from his consideration the evidence of trafficking that was the subject of the District Court prosecution. 60.Ground 3 asserts that the previous convictions and sentence demonstrate no more than street level trafficking and did not entitle the judge to make any assumptions or findings that went beyond this role. 61.Ground 4 complains that the judge erred in finding that all the cash found in the applicant’s flat “represents payments or other rewards he [the applicant] has received in connection with drug trafficking carried on by him or together with or by others”.[10] It was argued that the judge wrongly rejected the explanation of the applicant as to the source of the monies, given that he advanced this explanation at the first opportunity and given that it had caused the jury to harbour a reasonable doubt in respect of his guilt of the second count. This ground also asserts that the judge was wrong to assume that the verdict of acquittal meant only that the jurors had a reasonable doubt about the money laundering. 62.Lastly, Ground 5 complains that the confiscation order was wrongly made and should be quashed or at the very least, the quantum had to be reassessed substantially downwards. F. The respondent’s submissions 63.Given the length of this judgment I shall not set out the respondent’s submissions. I have, of course given them due consideration in reaching my decision and I am grateful to Ms Alice Chan, Mr Andrew Li and Ms Jennifer Fok, counsel for the respondent, for their industry in the preparation of the filed submissions. G. Discussion G.1 The appeal against conviction Ground 1 64.I am not persuaded that it is reasonably arguable that the media material would afford the applicant a ground of appeal. The media material falls into two categories. The first category is a video clip of the applicant being escorted out of the building where he resided. It is said that on the basis of this video clip the Court of Appeal would be persuaded that the person on the left of the applicant is not PW4. In the video clip the image of this person appears only for a few seconds and the image is taken from the right side of the applicant so that the applicant partly obscures this person’s head. The person is wearing a face mask and spectacles. There is no way that anybody could reach a definitive conclusion about the identity of this person or make a positive finding that the image was not that of PW4. As Mr Bruce rightly conceded, other than the assertion by the applicant, there was no evidence, let alone independent evidence, to allow the Court of Appeal to make a finding. 65.The second category is a film clip of a police press conference where some, but not all, of the exhibits are on display. In respect of this media material it is asserted that the blue and white plastic bag which contained a large quantity of empty resealable plastic bags and which the police claimed was seized from the applicant’s bedroom, was not on display. Again the quality of the film clip images and its short duration do not allow for any positive conclusion that the blue and white plastic bag was not present. 66.Ground 1 is not reasonably arguable. Ground 2 67.Given the important matters that were the subject of the jury’s concern I am of the view that it is reasonably arguable that the judge’s response did not adequately guide them on the relevance of their concerns to their assessment of the credibility of the witnesses. Plainly, how the house search and seizures were done by the police officers and which police officers were present during the search arguably was crucial to the jury’s assessment of the credibility of the police witnesses and went to the heart of the defence case. Ground 3 68.I am not persuaded that the fresh evidence of the DNA analysis would afford the applicant a ground of appeal. It would not be able to tell when the DNA was deposited. It goes no further than making it likely that a person of East Asian ethnicity was the depositor of the DNA material. This is hardly a startling likelihood when one considers the ethnic make-up of the Hong Kong population. It would, in my view, be a huge, and totally unwarranted, leap to conclude that the depositor of the DNA must have been a member of the police team that searched the applicant’s room. 69.Ground 3 is not reasonably arguable. Ground 4 70.The judge’s response to the jury’s question about the plastic bag was, in the circumstances, perfectly reasonable and sufficient. 71.Ground 4 is not reasonably arguable. Ground 5 72.Having granted leave on Ground 2, I grant leave on Ground 5. The appeal against sentence: (i) the period of imprisonment Ground 1 73.The applicant had been awaiting the processing of his asylum claim for some time. In that time he had graduated from being a street level trafficker of dangerous drugs to running a packaging and distribution centre for a large quantity of dangerous drugs. In my view, given the persistent and serious abuse of Hong Kong that is reflected by his conduct, it is not reasonably arguable that an enhancement of 16 months for this aggravating factor is excessive. Ground 2 74.The purpose of the enhancement that is given for a criminal record is to provide additional deterrence to the offender and to protect the Hong Kong community from the offender’s criminal conduct. The judge correctly directed himself on these legal principles. The only question is whether his conclusion was justified by the facts. 75.In determining whether there is a need for additional deterrence and protection of the Hong Kong community the judge is not confined to having regard to only the previous conviction. What is important in respect of this applicant is what has transpired since that earlier conviction for drug trafficking. As mentioned above, in the time since his earlier conviction the applicant has become more, not less, heavily involved in drug trafficking and the scale of his operation has expanded significantly. Clearly an enhancement was appropriate and it is not reasonably arguable that 4 months is excessive. Ground 3 76.I am not persuaded that it is reasonably arguable that the length of the applicant’s sentence is manifestly excessive. In reaching this conclusion I have had regard to whether the two enhancements that the judge made to his starting point were, separately or cumulatively, excessive and under Grounds 1 and 2 I concluded that, separately, they were not. Nor do I think that it is reasonably arguable that, when the total of these enhancements are added to the judge’s starting point, the applicant’s overall sentence becomes manifestly excessive. 77.Ground 3 is not reasonably arguable. The appeal against sentence: (ii) the confiscation order. Grounds 1 and 2 78.I shall deal with these two grounds together as they essentially make the same point. This point is that the judge’s ultimate conclusion that the monies were the proceeds of drug trafficking flowed from a number of preliminary findings for which there was not a factual basis and for which the judge did not articulate a factual basis. The factual basis set out by the judge was:
79.A most important finding of the judge was that the applicant’s explanations for the source of the monies in his possession was unbelievable. This finding provided context for the factual matters set out in the preceding paragraph and made it easier for the judge to draw the following inferences:
80.The factual matters set out above were all available to him on the evidence before him. The inferences that he drew were inferences which, on the balance of probabilities, were available to be drawn from the factual matters he found proven and from the absence of a credible explanation for the applicant’s possession, in multiple currencies, of such a large sum of money. 81.I am not persuaded that it is reasonably arguable that there was not a factual basis for the judge’s conclusion that the applicant benefited from drug trafficking or that the judge did not articulate his reasons for so finding. 82.Grounds 1 and 2 are not reasonably arguable. Ground 3 83.The applicant was convicted of being in possession of a large quantity of cocaine and a traffickable quantity of Ice and a small amount of herbal cannabis. In addition he was in possession of a large quantity of resealable plastic bags. The fact that in 2011 the applicant may have been operating as only a street level trafficker does not mean that since that time he has continued to limit his trafficking activities to this role. On the facts underlying his conviction it was, in my view, clearly open to the judge to conclude that the applicant had graduated to operating a packaging and distribution centre for multiple types of dangerous drug in a more elaborate operation. In so concluding, he was not making an unwarranted and speculative assumption but rather was drawing an inference clearly available to him on the proven facts. 84.Ground 3 is not reasonably arguable. Ground 4 85.It is not argued that the judge could not reject the applicant’s explanation, only that before doing so he should have had regard to the fact that the applicant had been consistent in advancing this explanation from the earliest time and should have taken into account that the explanation may have been accepted by the jury. 86.The applicant’s explanation is, on its face, wholly lacking in credibility. The fact that the applicant advanced it from the earliest opportunity, and continued to maintain it, does not in any way enhance its credibility. The judge gave reasons for rejecting it and those reasons are detailed and perfectly sufficient in the circumstances. 87.It is argued that the judge should have taken into account the fact that the jury may have accepted the applicant’s explanation. But I do not see how the judge can be expected to do so. The basis of the jury’s verdict remains unknown and it is only possible to say what it could have been. This argument ignores the importance of the judge performing a judicial task of adjudication on the evidence before him. For him to allow himself to be influenced in the independent performance of this task by speculating what might have been the basis of the jury’s verdict would, in my view, be quite improper. 88.Ground 4 is not reasonably arguable. Ground 5 89.This ground relies on the preceding grounds for its conclusion that the confiscation was wrongly made. In view of my decisions in respect of those grounds it must follow that I am of the view that Ground 5 is not reasonably arguable. Disposition 90.For these reasons I grant the application for leave to appeal against conviction, but only in respect of Grounds 2 and 5, and refuse the application for leave to appeal against sentence, including the confiscation order. 91.I remind the applicant of his right to renew his application for the refused grounds of appeal against conviction and sentence, including the confiscation order, before the Court of Appeal and also remind him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal has the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.
For conviction and sentence Ms Alice Chan DDPP (Ag), of the Department of Justice, for the respondent For confiscation order Mr Andrew Li ADPP (Ag) and Ms Jennifer Fok SPP, of the Department of Justice, for the respondent Mr Andrew Bruce SC, instructed by Tung, Ng Tse & Lam, assigned by DLA, for the applicant [1] This was HKSAR v Mahabul Alam Khan CACC 116/2016, unreported, 8 September 2017. [2] [1990] 2 HKLRD 370 [3] [1994] 1 HKC 342 [4] Appeal Bundle, page 108S-T. [5] CACC 116/2016, unreported, 8 September 2017. [6] Appeal Bundle, page 111C-E. [7] Appeal Bundle, page 64E-F. [8] Appeal Bundle, page 297. [9] [1999] 2 HKLRD 830 [10] Appeal Bundle, page 146E-F. | ||||||||||||||||
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