HKSAR v. Khaliq Salman (Aka Khalia Salman)

CACC 131/2023 [2024] HKCA 1084

On appeal from [2023] HKCFI 1764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 131 OF 2023

(ON APPEAL FROM HCCC NO 188 OF 2021)

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J U D G M E N T

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Hon Zervos Acting CJHC (giving the Judgment of the Court):

1.On 28 April 2023, the appellant pleaded guilty to one count of conspiracy to rob, contrary to s.10(1) and (2) of the Theft Ordinance (Cap 210) and ss.159A and 159C of the Crimes Ordinance (Cap 200) before D’Almada Remedios J (the Judge). On 14 June 2023, the Judge sentenced the appellant to 8 years’ imprisonment.

2.On 7 July 2023, the appellant filed an application for leave to appeal his sentence.

3.On 20 February 2024, a Single Judge granted leave to the appellant to appeal against sentence on the issue of whether his assistance to the authorities was properly characterised as being of “no practical use”. An appeal aid certificate was also granted to the appellant for him to have legal representation in the appeal. [1]

The summary of facts

4.In entering a plea of guilty to the charge of conspiracy to rob, the appellant agreed a summary of facts that set out the factual circumstances of the offence.

5.On the morning of 10 January 2020, police officers on patrol observed a grey vehicle stationary at Tin Wu Road, outside Sherwood Court, Kingswood Villas, Tin Shui Wai. The police intercepted and checked the vehicle. They identified four men in the vehicle, the appellant, Hameed Mohammad Adil (referred to as Person 1), Duraim Ali (referred to as Person 3) and Ahmad Ali (referred to as Person 4). They found a face mask and two mobile telephones on the appellant; a face scarf and one mobile telephone on Person 1; a face scarf, a face mask and one mobile telephone on Person 3; and three mobile telephones on Person 4. They also found inside the vehicle two machetes (one inside a sheath and the other inside a badminton racket bag), an empty backpack, five pairs of gloves, a pack of plastic strips, two rolls of duct tape, two face scarfs and an unopened face mask. The police later confirmed that the vehicle’s front and rear licence plates were false.

6.The police extracted from Person 1’s mobile telephone a photograph of Ms Guan Yan Fen (Ms Guan), who was the proprietor of a money exchange shop in Kingswood Richly Plaza at Tin Wu Road, Tin Shui Wai, which was about 300 metres away from where the vehicle was intercepted.

7.The contents of the appellant’s two video recorded interviews were set out in the summary of facts as follows[2]:

“(1) In the morning of the day in question, Person 4 called him and offered him a job;

(2) He then sent a WhatsApp message to Person 4 informing him of the address of the hotel which he resided at;

(3) At about 6 a.m. of the day in question, Person 1 and Person 4 arrived at the hotel and met up with him;

(4) He asked Person 1 and Person 4 about the job, and Person 1 told him that there would be a female carrying a large amount of money;

(5) Person·1 showed the photo of Guan to him on a mobile phone and said Guan was the robbery target who was working in the money exchange shop;

(6) Person 1 told him that they were going to rob Guan when the money exchange shop opened. He agreed to participate in the robbery;

(7) The three of them thereafter left the hotel and got in the grey vehicle in which Person 3 was already inside; Person 4 then drove;

(8) Person 4 then drove them to Nam Cheong;

(9) When they arrived near Nam Cheong MTR station, a Pakistani male whom he had seen on a few previous occasions (‘WP’) got inside the vehicle with a badminton racket bag containing machetes;

(10) Afterwards they left Nam Cheong and drove to Tin Shui Wai;

(11) Person 1 said Person 3 and WP would carry the machetes and would look for Guan in the money exchange shop. Person 1 told him to bring a bag in order to carry the money;

(12) When they arrived at a bus stop in Tin Shui Wai, Person 1 and WP got off the vehicle and said they would come back;

(13) He later saw Person 1 coming back to the vehicle alone. He then saw Person 1 taking a set of car plates from the vehicle and then placing those plates at the front and rear of the vehicle;

(14) Person 1 then told the parties that they would go to the money exchange shop in Tin Shi Wai. As Person 3 had gotten off the vehicle and was concealing the machetes in his body, the Defendant suggested to Person 3 to put them inside the vehicle;

(15) The parties thereafter switched positions inside the vehicle;

(16) Later they were intercepted and arrested by the police;

(17) Person 3 knew the address of the money exchange shop but he didn’t;

(18) Person 4 was responsible for recruiting him to commit the robbery, Person 1 was the mastermind who was responsible for instructing the others to go to the money exchange shop with the machetes to commit the robbery, Person 3 and WP would rob Guan with the machetes, and he would be responsible for running away with the robbed money;

(19) There was a backpack inside the vehicle which would be used for carrying the robbed money;

(20) The face mask found on and seized from him was provided to him by Person 1. Person 1 gave each of them a face mask and asked them to use it when they commit the robbery;

(21) The badminton racket bag seized from the grey vehicle belonged to WP and this badminton racket bag contained machetes; and

(22) When the photo of Guan found inside Person l’s mobile phone was shown to him by the police, he confirmed that this was the photo shown to him by Person l at the material time.”

8.It is relevant to note that also before the court in respect of this offence was another defendant, Chan Chun Ming, Jeremy (Chan), who had pleaded guilty to a conspiracy to rob charge in HCCC 189/2021. In Chan’s summary of facts [3], it was stated that he knew Ms Guan, who was the proprietor of a money exchange shop. He gave details about Ms Guan, including a photograph of her, to “H”, a Chinese male, and “M”, a South Asian male, in order to rob her. He also sold his grey vehicle to M to be used in the robbery, which was the vehicle the four men (Persons 1, 2, 3 and 4) were in at the time of their apprehension by the police.

The sentence

9.The appellant was sentenced on 14 June 2023. He had made two non-prejudicial statements dated 24 October 2022 and 14 April 2023 respectively, which were placed before the court.

10.In her reasons for sentence, the Judge comprehensively reviewed the evidence and the appellant’s background and mitigation. She referred to the relevant sentencing authorities dealing with armed robbery and the aggravating factors that may warrant an enhancement to a sentence for this type of crime. She considered that this was a very serious case of robbery, which fortunately had been prevented due to the intervention of the police. She found that this was a well-planned and premeditated robbery, targeting the proprietor of a money exchange shop when she would be alone and isolated. The gang consisted of five robbers, including Chan. The four men in the vehicle were armed with machetes. They were organised to rob the victim and make a quick getaway.

11.The Judge adopted a starting point of 10 years’ imprisonment, which she enhanced by 1 year to 11 years’ imprisonment for the appellant’s status as a Form 8 recognizance holder. She reduced the appellant’s notional starting point by 25% for his late guilty plea on the first day of trial and a further 2% for his full confession because, without it, there may have been insufficient evidence to prosecute him. The resultant sentence was 8 years’ imprisonment.

12.The Judge noted that the appellant had provided information to the police, but it had been assessed by the prosecution as being of “no value to the authorities”[4], notwithstanding the usual procedure as set out in HKSAR v Yeung Hoi Ting[5] had not been followed. Accordingly, the Judge had not been given the opportunity to take this matter properly into account when determining the sentence to be passed.

Compliance with the Yeung Hoi Ting procedure

13.At the leave hearing, the respondent was directed to comply with the procedure set out in Yeung Hoi Ting. As a consequence, Senior Inspector, Woo Cheuk Hin, Ivan, filed a statement dated 8 February 2024, in which he set out the background and history of the case, the assistance rendered by the appellant and the police’s assessment of it. Senior Superintendent, Mao Lee Sha, examined the facts of the case and certified that they were as reported by the Senior Inspector in his statement.[6]

14.Senior Inspector Woo provided a detailed description of the two non-prejudicial statements made by the appellant. He explained that the four men in the grey vehicle and two Chinese males were arrested for conspiracy to rob. On legal advice, the charge of conspiracy to rob was withdrawn against Person 1, Person 3 and Person 4 due to insufficient evidence, and Person 1 was instead charged with three traffic related offences. While the charge of conspiracy to rob was maintained against the appellant and Chan. On 16 August 2022, the legal representative for the appellant informed the prosecution that he wished to plead guilty to the conspiracy to rob charge and was prepared to testify as a prosecution witness against the other three persons. As a result, two non-prejudicial statements were taken from the appellant on 24 October 2022 and 14 April 2023.

15.In his statement, Senior Inspector Woo provided the following assessment of the appellant’s assistance, where Person 1, Person 2, Person 3, and Person 4 are designated D1, D2 (the appellant), D3, and D4 respectively:

“17. D1, D3 and D4 were arrested together with D2 on the same private car, in which D4’s DNA was found on the steering wheel. The conversation between D1 and D3 also had some implication that they themselves planned to do something illegal. D1, D3 and D4 were highly suspicious, but without D2’s NPSs, it was unclear what they had intended or conspired to do. However, the police assesses that D2’s credibility and reliability as a prosecution witness is low. Among other inconsistencies, D2 made an inconsistent account of the others’ roles in the VRIs and the NPSs and the difference in the roles of his accomplices is significant. The NPSs were taken more than 2 years after the incident but D2 claimed that the version in the NPSs was more accurate. The possibility that D2 had made fabrications in his account could not be ruled out. D2 excused himself by explaining that he might have mixed up their roles as he consumed methamphetamine on that day, which further cast doubt on his reliability and credibility. In view of the circumstances, there was insufficient evidence of proving that D1, D3 and D4 had conspired with D2 to commit the robbery. Therefore, the Police assesses D2’s information/assistance is not of practical use.”

16.The above assessment was the basis on which the appellant’s information and assistance were considered to be of no practical use. Despite accepting that without the appellant’s non-prejudicial statements, “it was unclear what they intended or conspired to do”, Senior Inspector Woo stated that the police assessed the appellant’s credibility and reliability as a prosecution witness as “low”. He came to this view mainly because of what he considered to be significant inconsistencies between the appellant’s non-prejudicial statements and his video recorded interviews as to the roles of the co-conspirators, and the appellant’s claim that he had consumed methamphetamine on the day of the offence, which was the appellant’s explanation for why initially he got some things wrong. We will have more to say about this assessment later in our judgment.

The grounds of appeal

17.Mr James Sherry, for the appellant, contends that the sentence is manifestly excessive and wrong in principle on two grounds. Ground 1 was granted leave and concerns the issue of whether the appellant should have received any discount on his sentence for the assistance he rendered to the authorities. Ground 2 was not previously argued or the subject of the leave application and concerns whether the appellant should have been given credit, for seeking to withdraw from the conspiracy to rob.

Ground 1

The appellant’s submission

18.By Ground 1, it is complained that the Judge erred in failing to give any discount for the appellant’s assistance to the authorities. The appellant had given two video recorded interviews and two non-prejudicial statements implicating other co-conspirators and expressing his willingness to testify against them. It is contended that although the information did not yield any tangible results against the co-conspirators named in the indictment, it was potentially useful to the authorities in preventing, monitoring or detecting criminal activity, thus warranting a discount: HKSAR v M [7].

19.The appellant in his two non-prejudicial statements explained the circumstances leading to the conspiracy to rob, which was largely consistent with his account given in the video recorded interviews,[8] despite there being some inconsistencies as to who was to do what during the proposed robbery[9]. The information, coupled with the interception of three other co-conspirators at the same time in the grey vehicle with knives, masks and other paraphernalia found on board, would have supported the prosecution of the three men for conspiracy to rob. It is contended that without the information, the conspiracy to rob would have gone undetected and the co-conspirators unidentified. [10] Furthermore, the information in respect of the false licence plates would have assisted the police in apprehending and convicting Chan.

The respondent’s submission

20.Mr Beney Wong, for the respondent, submits that the appellant’s assistance was insufficient to support the prosecution against the co-conspirators and was assessed to be of no practical value to the authorities. He reinforces his submission with the following points.

21.First, a court would not normally embark on an enquiry into the cogency or validity of the relevant authority’s assessment of the usefulness of the defendant’s assistance in the absence of the allegation of mala fides: HKSAR v Kilima Abubaba Abba[11]and HKSAR v M [12]. In the present case, there are no exceptional circumstances to justify a challenge to the police’s assessment.

22.Secondly, although the procedure in Yeung Hoi Ting had not been compiled with at the time of sentencing, defence counsel was informed of the assessment of the appellant’s assistance before mitigation, who seemed to have accepted that the non-prejudicial statements were not satisfactory or reliable enough. Defence counsel described the issue of the appellant’s assistance as a “moot” point, telling the court that the appellant’s memory might have been affected by the passage of time when he gave the statements. However, he did not pursue the matter.[13]

23.Thirdly, there are material discrepancies between the appellant’s accounts in the video recorded interviews and the non-prejudicial statements, and the appellant gave no satisfactory explanation for those discrepancies. [14] The appellant’s explanation that he was affected by the methamphetamine consumed on the day of the offence, does not aid his credibility and reliability.[15] In the similar cases of HKSAR v YMY [16]and HKSAR v M, the Court of Appeal refused to give any sentencing discount for information that was assessed to be of no practical use, lacking credibility and reliability.

24.Fourthly, without the appellant’s testimony, the case against the co-conspirators was purely circumstantial. The accumulative effect of the circumstantial evidence (including the fact that four of the men were intercepted in the grey vehicle with knives and masks) and the confession of Chan (who indicated an unwillingness to testify) under caution that he sold the grey vehicle to two other persons in order to commit robbery against the target proprietor, only amounted to suspicion and was insufficient to support a charge against the co-conspirators.

25.Fifthly, irrespective of the appellant’s information on the use of false licence plates, Chan’s arrest was based on the police’s independent enquiry with the Transport Department and subsequent investigation.

26.Mr Wong submits that the police assessment of the appellant’s assistance was of no practical use could not be faulted.

Discussion

27.This Court in Yeung Hoi Ting [17], has emphasised the importance of the role to be performed by a law enforcement agency and the prosecuting authority in assessing the usefulness of a defendant’s assistance: HKSAR v M [18]; and HKSAR v X [19]. However, this case raises a new issue that has caused us some concern. The appellant pleaded guilty to conspiracy to rob, having been caught red-handed together with his fellow robbers, armed and equipped to carry out a robbery on a targeted victim. He made a series of statements to the police in various capacities: initially as an arrested person and later as a person who was prepared to admit his crime.

28.The courts are generally reluctant to be involved in any evaluation of a person as a witness because that is a matter for those involved in the investigation and prosecution of an alleged criminal offence, who are intricately involved in the case and have an overall appreciation of the facts and circumstances, some of which may not form part of the public record. However, in the present case, the assessment of the appellant’s credibility and reliability as a witness was based on his inconsistencies in the various accounts he gave to the police about the planned robbery. We have not been informed that anything else had a bearing on this assessment. We have considered these inconsistencies and have to say that they were not that significant or matters that could not be appropriately addressed before a tribunal of fact. But more importantly, there was cogent evidence supporting the appellant’s account that seems to have been inappropriately overlooked or discounted, including:

(1)  the appellant and Person 1, Person 2 and Person 3 were intercepted in the grey vehicle armed and equipped to carry out a robbery (machetes, restraints, face masks and gloves);

(2)  the grey vehicle with the men inside was located near the location of the money exchange shop of the target victim;

(3)  Person 1 had on his telephone a photograph of the target victim (Ms Guan, who knew none of the men in the grey vehicle);

(4)  messages between Person 1 and Person 3 from the early morning of the day of their arrest revealed that they were planning to do something for which it was suggested that Person 3 was to act as a lookout and wear a cap and dark clothing;

(5)  the grey vehicle had false number plates and was not registered to any of the four men (previously registered to Chan), who were all Form 8 recognizance holders (Person 1 pleaded guilty to driving without a licence, driving an unlicensed vehicle and driving without third party insurance);

(6)  the CCTV footage of the appellant’s hotel, where he was living, confirmed his account about the movement of himself, Person 1 and Person 4; and

(7)  Person 4’s DNA on the steering wheel of the grey vehicle, confirmed the appellant’s account that at one stage Person 4 drove the grey vehicle.

29.In the present case, the Judge was given the two non-prejudicial statements and was told the assistance was of no practical use. The Judge did not have the benefit of a statement from the investigator detailing the basis of the assessment and a statement from an independent senior officer verifying the facts.

30.The assessment of no practical use was attributed to the discrepancies between the appellant’s video recorded interviews and his non-prejudicial statements[20], which have been set out in the respondent’s written submission. These discrepancies concerned the names and roles of the other persons and certain events but did not detract from the appellant’s account that the four men were in the grey vehicle to commit a robbery on Ms Guan. As we have already pointed out, there was independent evidence that supported the appellant’s account that he and the three other men were in the vehicle to commit a robbery of Ms Guan. The question any tribunal of fact would have asked itself was, “What else were they there to do?”.

31.We have to say that based on the information and material before us, we find it surprising that the prosecuting authority did not proceed to prosecute the other men involved for the offence of conspiracy to rob. Even without the appellant’s evidence, there was a circumstantial case against the other men, particularly Person 1, who had a photograph of Ms Guan on his mobile telephone. However, the appellant was prepared to give evidence against these men, and whilst there were issues concerning his account of what took place, they were matters classically for a jury to resolve.

32.In our view, the appellant’s assistance in the form of information and an expressed willingness to be a witness against the other men was of practical use, but because of the view taken by those responsible for this case, the appellant’s assistance was not utilised. This is an exceptional case where we are bound to intervene because of the serious misjudgement on the part of the law enforcement agency and the prosecuting authority to assess and utilise the assistance rendered by the appellant properly.

33.We consider that the appellant’s assistance was of practical use in the sense that he provided detailed information regarding the robbery and the involvement of the other men. Despite the concerns about the inconsistencies of the appellant’s accounts, there was cogent evidence that supported his account of what had taken place. We are of the view that the appellant’s assistance justified a further discount to his sentence of 6 months.

Ground 2

The appellant’s submission

34.By Ground 2, it is averred that the Judge had failed to give credit for the appellant’s withdrawal from the conspiracy as in the case of HKSAR v Wong Kai Chun[21]. Mr James Sherry, for the appellant, submits that his withdrawal was intimated in his first non-prejudicial statement, which reads:[22]

“Adil Ali came back alone and said, ‘the male who got on the car at Nam Cheong Station said he did not want to do it and he left”. I said to Adil Ali, ‘if he is not willing to do it, then we should not do it’. Later, Adil Ali tried to find that male who left but in vain. We decided to leave, so we went back to the private car.”

35.Mr Sherry also refers to the appellant’s first video recorded interview where he was asked why they suspended or called off the operation, and he responded by saying that he did not know.[23]

The respondent’s submission

36.Mr Wong submits that this ground has no merit for the following reasons. First, the withdrawal was not raised as a mitigating factor at the time of sentencing. Secondly, there was no credible and reliable evidential basis that the appellant withdrew from the conspiracy to rob. Thirdly, the appellant’s statement in his first video recorded interview that he did not know why the operation was suspended or called off [24], was overshadowed by his full account that he and the others proceeded to carry out the robbery until they were intercepted by the police. Fourthly, the fact that the four of them were all intercepted in a vehicle, 300 metres away from the target money exchange shop with weapons and paraphernalia, strongly militates against any withdrawal from the conspiracy to rob.

Discussion

37.Ground 2 had not been argued at the leave hearing. It is a new ground of appeal out of time. No application or affirmation has been filed seeking leave for this ground of appeal.

38.There is no merit in the ground. The submission that the appellant withdrew from the conspiracy to rob flies in the face of the appellant’s guilty plea, the admitted facts, the appellant’s mitigation and the appellant’s non-prejudicial statements. It was part of the admitted facts that another person referred to as “WP” was initially involved but decided not to take part in the robbery; and that Person 1 then changed the plates on the grey vehicle and told the others “they would go to the money exchange shop”.[25] There was no factual basis as agreed by the appellant that he had withdrawn from the plan to rob the proprietor of the money exchange shop: HKSAR v Chu Yiu Keung [26]; HKSAR v Cheung Tak Wa [27]. Moreover, it had never been previously submitted that the appellant had withdrawn from the conspiratorial agreement to commit the robbery.

Conclusion

39.It follows from what we have said that we allow the appellant’s appeal against sentence, set aside the sentence of 8 years’ imprisonment and substitute it with a sentence of 7 years and 6 months’ imprisonment.

40.We also direct that a copy of this judgment be provided to the Commissioner of Police and the Director of Public Prosecutions for their appropriate consideration.

Mr Beney Wong, SADPP, of the Department of Justice, for the respondent

Mr James Sherry, instructed by Morley Chow Seto, assigned by the Director of Legal Aid, for the appellant