HKSAR v. Mohammad Fakhrul Alfaqih Bin Saadon

CACC 121/2020

[2022] HKCA 983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 121 OF 2020

(ON APPEAL FROM HCCC NO 349 OF 2019)

________________________

________________________

Before:  Hon Macrae VP and Zervos JA in Court

Date of Hearing:  28 June 2022

Date of Judgment:  6 July 2022

____________________

J U D G M E N T

____________________

Hon Macrae VP (giving the Judgment of the Court):

1.On 28 July 2020, the appellant was convicted after trial before Alex Lee J (the “judge”) and a jury of one count of trafficking in a dangerous drug, namely 1.97 kilogrammes of a crystalline solid containing 1.92 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 10 August 2020, the appellant was sentenced to 25½ years’ imprisonment.

2.On 17 August 2020, the appellant filed a Notice of application for leave to appeal against conviction and sentence. At a hearing on 30 December 2021, the Single Judge[1] refused the appellant leave to appeal against conviction but granted him leave to appeal against sentence, on the sole and limited basis that it appeared to have been accepted by Customs Inspector Yiu Man-ho, who said in a statement dated 21 March 2021 (“the first statement”), “at this stage and on this narrow basis, (the appellant’s) information had contributed, to a small extent, to the investigation direction against (X), who is currently under the investigation of the C & E Department; and on this narrow basis, I am of the view that the information provided by the appellant in the NPS (dated 6 July 2020) was of potential practical use for investigation and intelligence purposes”[2].

3.Following the hearing, the appellant applied to renew his application for leave to appeal against conviction; however, he formally abandoned his application in respect of conviction on 16 February 2022. We are now only concerned, therefore, with the appellant’s appeal against sentence, on which leave to appeal has been granted; and in respect of which the respondent has sought to admit fresh evidence, namely an affirmation of Police Inspector Lam Hoi-yuen, affirmed on 11 February 2022 pursuant to section 83V of the Criminal Procedure Ordinance, Cap 211 on the grounds that the information is required in the interests of justice.

4.Furthermore, an updated statement from Customs Inspector Yiu Man-ho, dated 20 June 2022 (“the second statement”), has now been provided to the Court, in which the Inspector has explained that because the appellant first chose to reveal information in his first NPS more than 16 months after his arrest and, again, in a second NPS more than 39 months after his arrest, such information was either already known or could not be verified. As a result, the appellant’s credibility was in doubt. He concluded the second statement, “I am of the view that the information provided by (the appellant) in the second NPS was of no potential practical use for investigation and intelligence purpose”.

5.On 28 June 2022, having heard argument, we reserved judgment in this matter. This is our judgment and the reasons therefor.

The basis of sentencing

6.The judge sentenced the appellant on the basis that the appellant was a drugs courier, who had knowingly imported Ice into Hong Kong. Having been intercepted at Hong Kong International Airport on 26 February 2019, the Ice particularised and quantified in the indictment was found in a secret compartment of a suitcase he was carrying. The street value of the Ice in question was HK$1,077,590 at the time[3].

Mitigation

7.The appellant is a Malaysian national, whose family members all reside in Malaysia. At the time of sentence, he was 28 years of age and had attended the University of Selangor in Malaysia, where he obtained a degree in industrial management. He was of good character both in Hong Kong and Malaysia. His university lecturer spoke well of his general character in a written statement provided to the court.

8.In his mitigation, Mr McNamara, counsel then acting for the appellant at trial, highlighted two matters. The first was the appellant’s active participation in Father Wotherspoon’s anti-drugs “campaign”. A letter with attachments from Father Wotherspoon dated 6 August 2020 was submitted in support of the claim[4]. For this assistance, the judge was invited to give a 3 months’ reduction in sentence[5].

9.The second matter was the appellant’s alleged information and assistance to Customs officers in his (then first) NPS[6]. In relation to this, the judge asked prosecuting counsel about the usefulness of any information the appellant had given[7]. After a short break, having checked with the relevant officer(s) concerned, prosecuting counsel orally informed the court that there was “no useful information from that NPS or the letter from Father John”[8]. As will be seen, this statement was not entirely correct. However, on receiving this information, and in the absence of any further submissions from defence counsel, the judge proceeded to sentence the appellant[9].

Reasons for sentence

10.Having considered the facts of the offence and the appellant’s background, the judge directed himself in accordance with the guidelines in HKSAR v Tam Yi Chun[10] and HKSAR v Abdallah[11]. He arrived at a starting point, on an arithmetical basis in respect of a courier trafficking in 1.92 kilogrammes of Ice, of 23 years and 9 months’ imprisonment. In accordance with HKSAR v Chung Ping Kun[12], the judge further enhanced the sentence by 2 years for the international element involved in bringing the drugs across the border into Hong Kong.

11.The judge held that, in serious cases of international drug trafficking, the major sentencing objectives were deterrence and punishment; accordingly, the relevance of a defendant’s good character was minimal. Nevertheless, having made reference to the judgment of the majority in HKSAR v Kilima Abubakar Abbas[13], the judge considered a reduction of sentence of 3 months’ imprisonment for assisting in Father Wotherspoon’s campaign to be appropriate.

12.Given that any information the appellant had supplied was not deemed useful according to prosecuting counsel, the judge declined to grant any further reduction for his claimed information and assistance. Accordingly, the appellant was sentenced to 25½ years’ imprisonment.

Grounds of appeal

13.Mr Percy on behalf of the appellant complained that the judge had failed to award any sentencing discount to the appellant for the information and assistance provided by the appellant in his first NPS, as a result of the prosecution’s failure to observe the procedures and guidelines for considering such information as set out in HKSAR v Yeung Hoi Ting[14]. In all the circumstances, the sentence of 25½ years’ imprisonment was, thereby, manifestly excessive.

14.In his first NPS, dated 6 July 2020, the appellant had identified and described various persons involved in drug trafficking activities (including X, his alleged recruiter), also furnishing several photographs of the individuals concerned.

15.During sentencing, however, the NPS was not shown to the judge. Prosecuting merely disclosed orally when asked that the appellant had given no useful information to the authorities. Consequently, it is submitted that the judge was not properly informed of the quality of the information provided by the appellant, who was thereby deprived of potential material mitigation.

16.The appellant emphasised that the policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. While there is no uniform discount for providing assistance to the authorities, each defendant’s assistance will be appropriately evaluated by the sentencing court based on the assessment of the law enforcement agency concerned as to its practical utility[15].

17.Since it can be said that the information provided by the appellant in his first NPS was of potential practical use for investigation and intelligence purposes, Mr Percy argued that on this admittedly narrow basis, the appellant should be given a “small” reduction in sentence.

18.However, since, in a letter to the Single Judge dated 27 December 2021, Father Wotherspoon had asserted, on the appellant’s behalf, that progress had been made to bring X to justice, the respondent sought to adduce fresh evidence before us to the effect that X’s arrest had nothing to do with the appellant’s information or assistance.

Respondent’s submissions

19.Ms Claudia Ng, for the respondent, acknowledged the importance of adhering to the procedures set out in Yeung Hoi Ting. However, she observed that there was only a short period of time between the appellant’s giving of his first NPS and the date of his sentence[16], and that no adjournment was sought and no objection was raised by defence counsel in respect of the oral statement by prosecuting counsel as to the usefulness of his assistance, the respondent submits that the prosecution could hardly be blamed for being unable to provide a conclusive view of the appellant’s information at the time of sentence.

20.In view of the way the matter was expressed in the first statement of Customs Inspector Yiu Man-ho on 21 March 2021, Ms Ng submitted that the information provided by the appellant was purely corroborative and had no practical utility in its own right; accordingly, the appellant did not merit any further reduction of sentence.

21.The respondent submitted that the overall sentence imposed by the judge was carefully arrived at and could not be said to be either wrong in principle or manifestly excessive.

Discussion

22.This case raises the vexed and recurring question of the utility of information which is provided by a defendant or appellant late in proceedings, in this case more than 16 months after his original arrest, and then more than 39 months after his arrest. During that time, a defendant will have been in the prison system listening to other prisoners and learning how they came to be involved in similar cases, and the concern of this Court must be the extent to which the information provided, after more than a year has passed, is original, unadulterated and genuinely derives from the defendant or appellant himself. This Court recently voiced its concern on this matter in HKSAR v Omogo Stephen Okuta[17]:

“It is unfortunately the case that the rendering of assistance by a defendant in order to receive a discount to his sentence can be open to abuse. There have been cases where a defendant provides the authorities with information that is either commonly known in the drug trade or regurgitated from other sources. Such information is invariably of little or no practical use because of its nature and reliability and the timing of when it was provided. As will become apparent in this judgment, the present case is such an instance.”

23.Where third parties have taken it upon themselves to act as conduits in passing on information, as well as combining it with intelligence they have gleaned from other sources in respect of a particular target or individual, the scope for abuse of the system of discounts for any assistance provided becomes obvious. We learned, for example, in the present case, that two of the photographs forwarded to the authorities were in fact supplied by Father Wotherspoon to the appellant and confirmed by him. That does not mean that the person on the photograph was not the person in question, but there is always a danger of prisoners simply adopting other people’s information as their own in such circumstances, particularly when the potential rewards for generating and passing on information are potentially so great. It is also clear that much of the information given to the authorities by the appellant had already been disclosed in a letter from Father Wotherspoon to the sentencing judge on 6 August 2020.

24.It was also said in Omogo Stephen Okuta that there is a duty on the law enforcement agency concerned to ensure that the provision of assistance by offenders is handled very carefully, since the agency itself has an important role to play in the sentencing process[18]. We are quite satisfied that Customs officers have properly complied with their responsibilities in this regard: indeed, this Court took a considerable time itself to explore the provenance and detail of the claimed assistance.

25.We are very doubtful that the applicant supplied any original information that could ultimately be characterised as of real, practical use to the authorities. Since it is accepted that the sentence is otherwise unimpeachable and in accordance with the relevant guidelines, we would in normal circumstances have simply dismissed this appeal.

26.However, the fact remains that, regrettably, the judge was incorrectly informed verbally from the Bar table that the appellant had provided “no useful information”, when Customs Inspector Yiu Man-ho was prepared to concede in the first statement he wrote that the appellant’s information had contributed, to a very limited extent, to the direction of the investigation; and on that narrow basis, it could be said to have been of some practical use. No blame attaches to either prosecuting counsel, or the judge or the Customs authority for the fact that the court was not properly apprised of the correct position at the time of mitigation: if it was anyone’s fault, it was that of the appellant for coming forward so late with the information, whilst he was in fact on trial contesting his guilt.

27.Nevertheless, if we put ourselves in the position of the sentencing judge, had he been told what was in the first statement of Customs Inspector Yiu Man-ho, including the nature of the information and its potential usefulness, then we think the judge would undoubtedly have acted upon it, albeit in a very limited way, by giving the appellant a small discount for his assistance. Once the appellant had subsequently read the first statement of Customs Inspector Yiu Man-ho, we think he may have had a legitimate complaint about what the judge had been verbally told in court and, no doubt, an expectation of some recognition for his assistance by the courts, even though we are ourselves doubtful as to the origin and purity of some of the information he then, and later, gave.

28.Given the way the matter was unfortunately handled, without the judge being told the correct position, so that he could properly determine whether the appellant deserved any discount at all, we are prepared to give the appellant a further slight reduction in sentence of 6 months’ imprisonment.

29.However, we wish to emphasise that any information or assistance that is given to the authorities is much more likely to be credited as of practical use the sooner it is given after a defendant’s arrest. There will then be less scope for adding to or adulterating the information from other sources, and more reason to think that such information is original and genuine.

30.Here, the appellant chose to plead not guilty and initially to appeal his conviction, which would have placed him at an obvious disadvantage if there were ever to be a prosecution mounted on the basis of his (and perhaps others’) alleged recruitment as a drug trafficker by X. Moreover, the information, such as it was, took more than 16 months to be forthcoming, which then resulted in significant effort being made by the authorities to follow up and assess the appellant’s information. Ultimately, it proved to be of little value from a defendant whose credibility, having protested his innocence and contested the trial, was by then in doubt.

31.Accordingly, the appeal is allowed to the extent that the sentence is reduced from 25½ years’ imprisonment to 25 years’ imprisonment.

Ms Claudia Ng SPP, of the Department of Justice, for the Respondent

Mr Duncan Percy, instructed by Alvin Cheng & Rosaline Choy, assigned by the Director of Legal Aid, for the Appellant