HKSAR v. Akram Muhammad

CACC 47/2021 [2023] HKCA 796

On appeal from [2020] HKCFI 3109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 47 OF 2021

(ON APPEAL FROM HCCC NO 412 OF 2019)

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J U D G M E N T

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1.The applicant stood trial with two other defendants charged with robbery of about 1,100 carats of diamonds and, in the alternative handling stolen goods of about 586 carats of diamonds before Barnes J (the judge)  and a jury. This was a retrial after the Court of Appeal had quashed the convictions of the applicant and the two defendants for robbery because of a misdirection on recent possession and failure by the prosecution to disclose material which had not been subject to an application for public interest immunity: HKSAR v Nayab Amin [1].

2.On 18 December 2020, the applicant was convicted on his own plea of handling stolen goods.  The judge sentenced him to 3 years and 45 days’ imprisonment.

3.When the applicant had been convicted of robbery in the previous trial, he was sentenced to 11 years’ imprisonment.  He had been arrested for that case on 11 May 2016 and placed in custody since then.  So when he was sentenced for the present conviction on 18 December 2020, he had already served that sentence.  He was then detained by the Immigration Department for breach of condition of stay and awaiting deportation.  After he had been refused leave to judicially review the decision in rejecting his application for asylum as a torture claimant on 30 May 2022, a deportation order was issued against him on 13 September 2022. 

4.On 2 September 2022, the applicant filed an application for leave to appeal against sentence out of time.  He filed this application a little less than two years after his sentence, which he had already served.  He makes no reference in his application that he has served his sentence and blames the delay in filing the application because of restrictions during the pandemic and his lack of legal knowledge and available information to make such an application.  He complains that he never admitted the summary of facts when he pleaded guilty to handling stolen goods.  He claims he only admitted the particulars of the charge.  He also complains that he should have been given a one third discount instead of the 25% discount he received from the judge.

5.The applicant is a Form 8 recognizance holder who entered Hong Kong in 2009.  He had a previous conviction of robbery for which he had been sentenced to 5 years and 3 months’ imprisonment in 2012.  The applicant’s handling of the stolen goods in the present case occurred in April 2016, within a year after his release from prison.  The judge adopted a starting point of 3 years and 6 months’ imprisonment, which she enhanced for these aggravating factors by 8 months to 4 years and 2 months’ imprisonment. She noted that during the previous trial, the applicant and the two defendants did not offer a plea to handling of stolen goods at the commencement of the trial but only after the main prosecution witness had given evidence against them and that the history of the case did not support a claim that they had pleaded guilty at the earliest or first available opportunity.  The judge considered that in the circumstances, a discount of 25% was appropriate.  Her reasoning for doing so cannot be faulted.

6.The suggestion by the applicant that he did not admit the summary of facts on which he was sentenced is false.  Counsel representing the applicant in a written submission to the court referred to the summary of facts and that the applicant had admitted them.

7.On the morning of this leave hearing, the applicant reported being sick, complaining of shortness of breath, and was taken to hospital.  I have decided to proceed with the leave hearing without the applicant.  In accordance with section 83U(1)  of the Criminal Procedure Ordinance, Cap 221, I consider that in the circumstances of this case, it is “in the interests of justice” to deal with the application in the absence of the applicant. 

8.This is a futile application and completely devoid of merit.  I have no hesitation in refusing the applicant leave to appeal against his sentence out of time.  I should add that given the circumstances, this application is tantamount to an abuse of process.

Ms Lily Yip, PP, of Department of Justice, for the respondent

The applicant appeared in person