HKSAR v. Khan Sadam Biland

CACC 53/2021 [2023] HKCA 911

On appeal from [2019] HKCFI 1714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 53 OF 2021

(ON APPEAL FROM HCCC NO 176 OF 2016)

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J U D G M E N T

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1.This was originally a hearing to deal with an application for bail pending appeal but at the outset the parties agreed to also deal with the application for leave to appeal against sentence out of time as the relevant papers had been filed.

2.The applicant and Ahmed Shamir, who were D2 and D1 respectively, appeared before Campbell-Moffat J (the judge) jointly charged with one count of trafficking in a dangerous drug, namely 1.95 kilogrammes of a powder containing 1.47 kilogrammes of cocaine (Count 1), while D2 was also charged with one count of trafficking in a dangerous drug, namely 698.03 grammes of a solid containing 630.93 grammes of cocaine (Count 2).

3.D1 and D2 originally pleaded not guilty to the counts they faced, but after a successful plea bargain D2 agreed to plead guilty to Count 1 and the prosecution agreed not to proceed with Count 2, which was left on the court file.  On 11 August 2017, the applicant pleaded guilty to Count 1 and was sentenced on 30 May 2019 to 17 years’ imprisonment by the judge.  D1 contested the count that he faced and was acquitted after trial.

4.After D2 pleaded guilty there were further hearings on 15 January and 21 March 2019 before he was ultimately sentenced on 30 May 2019.  He decided to provide assistance to the customs officers sometime in 2016 and gave several non-prejudicial statements in which he detailed the involvement of others in his case.

5.The brief facts were as follows. On 26 June 2015, customs officers intercepted a parcel which had been sent from Venezuela to Hong Kong and addressed to a person known as “Khan Sam”.  The parcel was declared to contain a “Submersible pump (Sample)”, but instead it contained six packets of plastic wrappings of the drugs particularised in Count 1.  D2 arranged for D1 to collect the parcel, who was subsequently arrested in a controlled delivery operation of the parcel.  With the information provided by D1, the customs officers arrested D2.  When interviewed under caution, D2 denied any knowledge of the drugs in the parcel but later admitted that he was responsible for the trafficking of the drugs in question.  It was agreed that the estimated street value of the drugs at the time of the offence was $2,041,650.

6.D2 was 25 years of age at the time of the offence and had a previous conviction for possession of a dangerous drug in 2010 as well as other relatively less serious convictions, which were not drug related.  In mitigation, it was submitted that he was not the mastermind and had pleaded guilty to the offence, which he should receive a discount.  It was also submitted that he assisted in Father John Wotherspoon’s anti-drug campaign.

7.The judge considered the sentencing guidelines laid out in HKSAR v Abdallah [2009] 3 HKLRD 437 and adopted an initial starting point of 23 years and 3 months’ imprisonment.  She enhanced the starting point by 2 years to 25 years and 3 months’ imprisonment for the aggravating factor that the applicant was part of a group that had brought the drugs into Hong Kong from overseas.  She further enhanced the starting point by 6 months to 25 years and 9 months’ imprisonment on the basis that D2 was not a simple courier at the bottom of the chain but was further up the hierarchy of the drug organisation behind the importation of the drugs.  She reduced the notional starting point by 3 months to 25 years and 6 months’ imprisonment for D2’s participation in Father Wotherspoon’s anti-drug campaign.  She also afforded D2 the full one third discount for his guilty plea and reduced his sentence to 17 years’ imprisonment.

8.The basis of the sentence appeal out of time is that D2 has provided useful assistance to customs officers by providing information against his accomplices in this case, whom he identified as D1 and Ms Lai Hiu Tung, Maggie (Ms Lai).  He testified against them in a later trial, which successfully led to their convictions.  See the Reasons for Sentence in HCCC 372/2019 and 216/2020.

9.Between July 2016 and May 2019, the applicant had given a total of seven non-prejudicial statements to customs officers implicating D1 and Ms Lai in respect of the drugs particularised in Count 2.  They subsequently stood trial on a joint count of conspiracy to manufacture cocaine, with an alternative count of trafficking in the drugs particularised in Count 2.  The trial took place between 11 and 20 April 2023, and D2 testified for the prosecution against them.  The jury returned a unanimous verdict of guilty on the count of conspiracy to manufacture a dangerous drug.  On 24 April 2023, they were each sentenced to 18 years and 11 months’ imprisonment.

10.It is confirmed by Mr Michael Tsang, for the respondent, that D2 had given “truthful and honest evidence” for the prosecution against his accomplices, which led to their successful convictions. He, however, takes issue with the submission on behalf of D2 that D2 falls into the “supergrass” category, which may entitle him to a maximum discount of two thirds on his notional starting point (incorporating a one third discount for his guilty plea).

11.Mr Tsang submits that D2 only testified against the accomplices involved in the same case and in the circumstances does not fall into the category of a “supergrass”.  As stated in the seminal case of Z v HKSAR [2007] 1 HKLRD 977 on the approach to be taken when sentencing an offender who has provided assistance to the authorities, when an accused who not only gave information proceeded to give truthful material evidence, the usual discount of 50% (including the one third reduction for pleading guilty) should be given to the accused.  In cases where the level of cooperation was such as to place an accused in the “supergrass” category, a maximum discount of two thirds could be given.  It is submitted that there is no concrete evidence that threats had been made against D2 or his family as a result of testifying against his accomplices and therefore is not entitled to a total sentencing discount of more than 50%.  See HKSAR v Chan Sik Wai and Another, unreported, CACC 134/1999, 16 December 1999; HKSAR v Cheung Chi Yuen, unrepoterd, CACC 288/2015, 16 May 2018; HKSAR v Mohamed Hussain Mohamed Imran, unreported, CACC 38/2018, 28 August 2020.

12.Mr John Marray, for D2, has refined his argument in oral submissions by contending that D2 should be given slightly more than 50% discount, in the region of 55%, because he provided information and gave evidence against D1 and Ms Lai for the offence of manufacturing crack cocaine that would not have been established without his cooperation and assistance.  He submits that this went further than giving evidence against accomplices in the same case but implicated the two defendants in another serious case that was not known by the authorities.

13.Whilst I do not have all the relevant material before me regarding D2’s assistance to the authorities, it is apparent that D2 has provided valuable assistance to them that secured the convictions of the two defendants for a crime that was not known to the authorities.  Whether this would entitle D2 to a discount of slightly more than 50% is reasonably arguable and one that would need to be appropriately considered by the Court of Appeal with all relevant material and information to hand.

14.D2 has been in jail custody since 2 July 2015. If the Court of Appeal was of the view that D2 was entitled to a 50% discount on the notional starting point, he would serve a term of 8 years and 6 months if he was given one third remission for good conduct.  This would mean he would be discharged from custody in January 2024.  If he were entitled to a discount of 55%, he would serve a sentence of 7 years and 8 months if he was given one third remission for good conduct.  This would mean he would be discharged from custody in March 2023 and therefore has served his sentence.  Of course, this depends on whether D2’s assistance would warrant a discount of more than 50%.  I should point out that the issue of his entitlement to a full one third discount for his guilty plea was appropriately considered by the judge.  It seems he had cooperated with the authorities at an early stage and the discount she gave was in line with previous authority.  The judge considered his immigration status but did not take it into account when sentencing.

15.No objection was taken by the respondent for the leave application against sentence to be made out of time given the circumstances of the case.  For the reasons I have given, I grant D2 leave to appeal against his sentence.  On the basis of the material before me and the relevant authorities, I consider that D2 will need to mount a very strong argument to obtain a discount of more than 50%.  It is for that reason I am not prepared to grant D2 bail pending appeal but I will arrange for an expedited hearing of his appeal.

Mr Michael Tsang, SPP, of Department of Justice, for the respondent

Mr John Marray, instructed by Cheung & Liu, Solicitors, assigned by Director of Legal Aid, for the applicant