HKSAR v. Mohd Waqar Ahmed

CACC 93/2021

[2021] HKCA 1181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 93 OF 2021

(ON APPEAL FROM DCCC NO 307 OF 2020)

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Before:  Hon Macrae VP and Zervos JA in Court

Date of Hearing:  12 August 2021

Date of Judgment:  12 August 2021

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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):

Introduction

1.On 21 April 2021, following his conviction on his own plea to one charge of transferring a travel document to another without reasonable excuse (Charge 3),[1] one charge of transferring an identity card to another person (Charge 4),[2] and one charge of furnishing false particulars to a registration officer (Charge 5),[3] before District Judge Tam (the judge), the applicant was sentenced to 13 months’ imprisonment.  The applicant originally faced a charge sheet containing 6 charges, however, Charges 1, 2 and 6 were left on the court file and marked not to be proceeded with without leave of the court. 

2.On 28 April 2021, the applicant filed a notice of application for leave to appeal against his sentence.  He applied for legal aid, which was refused, and appears in person in this application. 

The summary of facts

3.On 13 December 2017, the applicant, accompanied by a male known as “Zaheer Khan”, presented his British passport at the check in counter at the Airport Express, Kowloon Station.  Having confirmed the applicant’s identity and destination, the ground staff issued a boarding pass in the name of the applicant for Flight HX 080 from Hong Kong to Vancouver.[4]  In a cautioned interview on 27 March 2019, the applicant admitted that he had sold his passport and Hong Kong Identity Card to Zaheer Khan[5] and that he had lied when he approached the Immigration Department on 14 December 2017 to make an application for a new Hong Kong Identity Card . 

4.The boarding pass issued to the applicant for Hong Kong Airline Flight HX 080 ended up being used by a Pakistani male referred to as “Abbas Muhammad Qaisar”, who was intercepted at Vancouver International Airport when he tried to use the applicant’s passport to enter Canada.  He was also found in possession of the applicant’s Hong Kong Identity Card. 

Mitigation

5.The applicant was 30 years of age at the time of sentencing.  He was born in Hong Kong and had been educated to secondary level. He has four siblings, although his parents have passed away.  His father passed away when he was 2 years old and his mother some 5 years before sentencing.[6]  The applicant was working as a security guard at the time of the offence.

6.In July 2010, the applicant was diagnosed with brain cancer and had to undergo surgery involving a total excision of his left temporal lobe.  Defence counsel submitted he had, since the operation, “presented symptoms of deterioration of his mental faculties” and “his responses and recovery are dulled” and that he required assistance from his siblings.[7]  It was argued that someone with “full mental faculty” may have dealt with the matter differently.  Defence counsel explained to the judge that, during conferences, the applicant was very much mute with much of the communicating being done through the applicant’s brother, who would accompany him.[8]

7.The applicant’s brother and aunt each submitted a letter to the court, in which they stated that, since the applicant’s surgery, he had difficulty living a normal life and that he had been tricked by dishonest people into committing the offence.  It was also mentioned by them that he required the support of others on a daily basis.[9]

8.Defence counsel submitted the applicant committed the offence because he needed money and did not want to be a burden to his brother.  Although he said this was not a case of duress, he pointed out that the applicant had been threatened by two other men to carry out the scheme and that he was easily impressionable on account of his mental condition.[10]

9.It was noted that whilst the applicant had been promised $20,000 for selling his passport, he had never received any money, as the person was arrested in Vancouver.[11]  It was argued that, while the authorities had not deemed it necessary to take an non-prejudicial statement, he was nonetheless deserving of a discount because what he had submitted was of potential use.[12]

10.In discussion with the judge, it was accepted by defence counsel that in R v Wong Wing Tong[13] (referred to in HKSAR v Ng Wing Fai[14])  the appropriate starting point for transferring a travel document was 18 months’ imprisonment.[15]  After discussion, it was eventually suggested by defence counsel that an appropriate starting point was between 12 and 18 months’ imprisonment. 

11.Defence counsel sought to persuade the judge that a suspended sentence was appropriate in the circumstances.  This was because of the applicant’s mental condition and the chance of him reoffending was low, given that he had the support of his family.[16]

Medical reports

12.On 22 March 2021, the judge ordered medical reports be obtained.  Dr Chung Wai Sau Dicky, a visiting psychiatrist at Siu Lam Psychiatric Reception Centre, prepared a report dated 16 April 2021.  Dr Chung explained that investigation by electroencephalogram in January 2021 did not reveal any remarkable findings but did indicate “mild cerebral dysfunction, which can be compatible with his past surgery”.[17]  Dr Chung observed that the applicant was obese, could communicate with only simple English and looked tired in their interviews.  The applicant had also explained to Dr Chung that he could not sleep well in prison because of his size.  He conveyed to Dr Chung that he knew what he had done was wrong, but when he was asked about the offence, he would say he could not remember.  Dr Chung was of the view that the applicant did not have any psychiatric disorder or neuropsychiatric manifestation of brain disease and it was likely he understood what he did was wrong.  He was of the opinion that the applicant was fit to plead.[18]

13.Defence counsel argued the report of Dr Chung was more concerned with the applicant’s fitness to plead, [19] and that this was not the basis of his mitigation.  The judge expressed the view, in discussion with counsel, that there was no evidence that he was more vulnerable to abuse than someone else.[20]  Eventually it was decided by defence counsel for the applicant to call him to give evidence on the issue. 

Reasons for sentence

14.The judge found, despite his medical history, the applicant had understood that what he had done was wrong.[21]  The judge made reference to HKSAR v Liaqut, unrep., HCMA 278/2009, 21 October 2009, in which the applicant faced the same charges[22] and received a starting point of 18 months’ imprisonment for the offences.  This starting point was not disturbed with on appeal.

15.The judge afforded the applicant no discount for his assistance to the authorities as it was of no practical use.  The judge was not satisfied that the applicant’s brain surgery had impacted his mental faculties to the extent contended in mitigation, nor was he sympathetic to the applicant’s testimony that he was under compulsion or duress when he committed the offences. The judge noted that when the applicant was interviewed under caution, he voluntarily admitted the offences, but did not tell the officers anything about being threatened by others to commit them.[23]  The judge saw no grounds upon which to suspend the sentence. 

16.The judge therefore adopted a starting point of 18 months’ imprisonment on Charges 3 and 4.  In respect of Charge 5, the judge adopted a starting point of 6 months’ imprisonment.  The sentences for Charges 3 and 4 were ordered to run concurrently, while Charge 5 was ordered to run consecutively to Charges 3 and 4.  The judge allowed the applicant a full one third discount for his guilty plea.  As a result of the applicant’s clear record, the judge ordered one month off the sentences on Charges 3 and 4.  This resulted in a sentence of 11 months’ imprisonment on Charges 3 and 4, and 3 months and 20 days’ imprisonment on Charge 5.  He ordered that 2 months of the sentence on Charge 5 to run consecutively to the concurrent sentences on Charges 3 and 4, making an aggregate sentence of 13 months’ imprisonment. 

Discussion

17.The applicant complains that his sentence was “too heavy”, submitting that he pleaded guilty and indicated his willingness to assist the authorities.

18.Ms Audrey Parwani, for the respondent, submits the applicant has no cause for complaint for the sentence imposed on him and the judge adopted the correct starting points for the three offences. 

19.In respect of Charge 3, a starting point in the range from 12 to 15 months’ imprisonments is usually adopted, where a person has sold his travel document to another and there are no other aggravating factors.  See Wong Wing Tong and Ng Wing Fai.  However, in Liaqut Ali Khan, the judge in a magistracy appeal upheld a sentence of 18 months’ imprisonment for similar offences to which the applicant was sentenced on the basis that it was not manifestly excessive.  He found the appellant’s culpability warranted the sentence because:[24]

“… not only did the appellant transfer his passport and identity card to another, he took the extra step of checking in for the flight at the airport for the person who was going to use these documents. He was therefore clearly aware of the use that these documents were to put and to the international element involved.”

20.Ms Parwani prays in aid Liaqut Ali Khan to submit that the judge was correct to adopt a starting point of 18 months’ imprisonment on Charges 3 and 4, bearing in mind that the judge also ordered that they be served concurrently.  We are also of the view that the judge was correct in adopting a starting point of 18 months imprisonment to deal with the criminality in Charges 3 and 4.

21.The applicant received the one third discount on each charge for his guilty plea as well as a further discount of one month on Charges 3 and 4 and 10 days on Charge 5 for his clear record, which as described by Ms Parwani was generous in the circumstances.  We agree. 

22.We are also of the view that the judge was correct to treat Charge 5 as a separate and distinct offence, warranting the sentence to be treated partially consecutive to the concurrent sentences on Charges 3 and 4.

23.Ms Parwani submitted that the judge was entitled and correct to find that the applicant’s mental faculties were not impaired to the extent that it affected his commission of the offence.  Firstly, the psychiatric report confirmed that the applicant was fit to plead.  Furthermore, the judge had the benefit of seeing and hearing the applicant in court, explaining the reasons for his commission of the offences, and observing his demeanour.  In the circumstances, the judge’s finding and view that the applicant was not under any compulsion or duress when he committed these offences, cannot be said to be erroneous.  We have had the benefit of reading the transcript of the applicant’s evidence before the judge.  He was cross-examined in some detail and responded to questions asked of him, displaying a clear understanding of the matters asked and providing considered answers to them.[25] 

24.The judge found that there were no other mitigating factors which merited a further reduction.  Although it was submitted that the applicant was willing to provide assistance to authorities, prosecuting counsel had informed the judge that the Immigration Department found the information provided by the applicant in his hand-written notes not useful.[26]  We were also informed by Ms Parwani that Immigration Department officers approached the applicant after sentence on 22 June 2021 to obtain a non-prejudicial statement from him but he refused.

25.In the circumstances of this case, the applicant has no cause for complaint of the total sentence of 13 months’ imprisonment imposed on him by the judge. 

Conclusion

26.It follows from what we have said that we do not find any merit in this application.  The criminality involved of selling one’s travel document and Hong Kong identity card in order to facilitate someone else to travel abroad incognito is a serious crime.  The judge was correct to adopt a starting point on Charges 3 and 4 of 18 months’ imprisonment in the circumstances of this case.  He was also correct in treating as a separate and distinct offence the false representations made to Immigration Department officers in order to obtain a new Hong Kong identity card.  We considered whether the applicant’s brain surgery in 2008 and his mental condition may have had a bearing on him committing this offence.  On the evidence before the judge there was no basis on which to conclude that the applicant’s mental faculties were so impaired that he did not understand the seriousness of the crime that he was committing, and that he could be easily manipulated or cajoled by others to commit the crime. 

27.Accordingly, the application for leave to appeal against sentence is refused and the appeal is dismissed.

Ms Audrey Parwani, SPP, of the Department of Justice, for the respondent

The applicant appears in person