HKSAR v. Jhamal Azad
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CACC 109/2025 [2026] HKCA 2026 On appeal from [2025] HKCFI 2049 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 109 OF 2025 (ON APPEAL FROM HCCC NO 372 OF 2024) _______________
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________________ J U D G M E N T ________________ 1.On 12 March 2025, the applicant pleaded guilty before Deputy Judge Vinci Lam, SC (the judge) to one count of trafficking in dangerous drugs, namely 54.8 grammes of a crystalline solid containing 54.1 grammes of methamphetamine hydrochloride (commonly known as Ice), 0.02 gramme of a solid containing methamphetamine and 11 millilitres of a liquid containing 0.06 gramme of a solid containing methamphetamine. On 16 April 2025, the judge sentenced him to 7 years’ imprisonment in HCCC 372/2024 and ordered that 6 months of this sentence run concurrently with the sentence of 4 years’ imprisonment imposed on him in DCCC 1073/2023[1], with the remaining term of 6 years and 6 months to run consecutively. This resulted in an overall sentence of 10 years and 6 months’ imprisonment. 2.On 8 May 2025, the applicant applied for leave to appeal against his sentence in respect of HCCC 372/2024 only. He also applied for legal aid, which was granted on 30 June 2025. Mr Victor Lee and Mr Leon Chan, who represent the applicant, advance three grounds of appeal[2], namely: Ground 1 alleges that the judge erred in enhancing the starting point by 6 months’ imprisonment for the applicant’s previous dissimilar convictions. Ground 2 contends that the judge erred in apportioning only 6 months’ imprisonment of the sentence in HCCC 372/2024 to run concurrently with the sentence in DCCC 1073/2023, without sufficient regard to the totality principle. Ground 3 argues that the applicant should be given credit for his genuine attempt to assist the authorities. The agreed facts 3.To address this application, it is necessary to set out the facts admitted by the applicant in both cases, which may be summarised as follows. DCCC 1073/2023 [3] 4.The applicant (D1) was one of five defendants, including his wife, Dhillon Gurpeet Kaur (D2), Khan Abid (Abid) (D3), Lam Yin-ting (D4) and Yu Yam (D5), facing 20 charges of dishonesty, money laundering and related offences committed between 24 March 2022 and 8 August 2022 arising from cryptocurrency and online sales scams. On 10 October 2024, the applicant pleaded guilty to 19 charges[4] before Deputy District Judge Peony Wong and was sentenced to 4 years’ imprisonment. 5.Briefly stated, between 24 March and 29 July 2022, the applicant dishonestly obtained replacement SIM cards for six telephone numbers belonging to two cryptocurrency trading companies and three individuals by falsely claiming to be their owner and reporting the numbers as lost at police stations and telecommunications shops. Using the WhatsApp accounts linked to those numbers, he posed as company staff and induced victims to transfer a total of HK$508,000 to bank accounts linked to those numbers in purported exchange for cryptocurrency, which was never paid out. He also dealt with approximately HK$1.5 million, known or believed to represent proceeds of an indictable offence, through five bank accounts held in his name or that of others, including payments from online sales scams. Furthermore, he stole the identity card of a person named Mohammad Ali Javed (Javed), which had been reported lost on 9 May 2022, and used it to impersonate Javed in reporting a telephone number as lost and obtaining a replacement SIM card.[5] 6.On the morning of 8 August 2022, the police searched the applicant’s flat in Tseung Kwan O and found forged documents he had obtained to increase the deposit limits of bank accounts used in the offending. Later that afternoon, the police conducted an operation at the Royal Plaza Hotel in Mong Kok (the hotel). The applicant drove to the hotel without a valid driving licence or third-party motor insurance. At about 3 pm, he alighted from a private car outside the hotel entrance and informed the valet that he lived in Room 969 on 9/F of the hotel (the room). When intercepted by the police, the applicant produced Javed’s identity card before revealing his own identity. Upon arrest, the applicant was found in possession of a key card for the room, mobile telephones and SIM cards.[6] 7.The police conducted a search of the room at the hotel on 8 August 2022, and found inside the Ice particularised in the count, inhaling devices containing traces of Ice, used and empty resealable plastic bags, an electronic balance, and toothbrushes bearing the DNA of the applicant and his wife. The estimated street value of the Ice was HK$32,269.44. 8.Inquiries revealed that the room was booked under the name of the applicant’s wife for 7 to 8 August 2022 and under Javed’s name for 8 to 9 August 2022, notwithstanding that Javed had not booked the room and did not know the applicant. 9.CCTV footage of the hotel showed that on 7 August 2022, the applicant and his wife entered the room at 5:54 pm and later went in and out with several unknown visitors. On 8 August 2022, the applicant and two unknown men left the room at 12:19 pm, after which it remained empty. The applicant returned to the hotel at about 2:57 pm, before he was intercepted by the police. 10.In a subsequent video-recorded interview, the applicant stated that his wife booked the room and brought him there at about 4:30 pm on 7 August 2022, and that they each had a key card for the room. From that time until his arrest on 8 August 2022, four to five of his friends, including Abid, visited him in the room. He claimed that Abid stayed there on the morning of 8 August 2022, from about 7 am to 10 am, during which Abid brought the drugs and paraphernalia into the room, and consumed and weighed the drugs in his presence. He also admitted that he had picked up Javed’s identity card two days before his arrest and kept it in his possession. The sentence 11.The applicant was 28 years of age at the time of sentence, educated to Form 3 level, and had a fiancée with two children. He lived with his parents and siblings and received Comprehensive Social Security Assistance (CSSA) of HK$3,000 per month. Prior to his arrest, he had worked as a part-time food delivery worker, earning HK$5,000 per month. 12.The applicant had 27 previous convictions from seven court appearances between 2010 and 2024. On 3 September 2018, he was ordered to attend a Drug Addiction Treatment Centre (DATC) for theft, possession of a dangerous drug and possession of equipment fit and intended for smoking, injecting, or inhaling a dangerous drug committed in 2018.[8] On 17 December 2018 and 6 September 2021, he also received DATC orders for fraud and theft offences. He committed the offences in DCCC 1073/2023 within a month of his last discharge from DATC on 2 March 2022.[9] 13.In mitigation, defence counsel submitted that the applicant’s role was limited to that of a storekeeper, allowing Abid’s drugs to be stored in the hotel room on the date of the offence in order to earn HK$300 and receive drugs for free.[10] It was accepted that he had used Javed’s identity card to book the room at the material time.[11] Counsel pointed out that the present case and DCCC 1073/2023 both arose from the same police operation on the same day, but had been severed, with the applicant sentenced separately. She therefore invited the judge to take into account the term of imprisonment imposed in DCCC 1073/2023 when determining the overall sentence.[12] 14.In sentencing the applicant, the judge identified an arithmetical starting point of 9 years and 11 months’ imprisonment for the 54.16 grammes of Ice narcotic involved, in accordance with HKSAR v Huang Ruifang (No 3) [13]. Taking into account that the applicant had rented the hotel room using another person’s identity card and had allowed Abid to store and consume the drugs there with the paraphernalia so as to earn quick money and obtain free drugs, she adopted a notional starting point of 10 years’ imprisonment. In view of his criminal record, the judge noted that he had one prior conviction for possession of a dangerous drug, which she did not treat as a similar offence. However, she considered that “the fact remains that he has a poor criminal record”, and on that basis, she enhanced the starting point by 6 months to 10 years and 6 months’ imprisonment.[14] Having found that his personal and family circumstances afforded no meaningful mitigation, she applied a one‑third discount for his guilty plea and sentenced him to 7 years’ imprisonment. 15.The judge noted that the applicant was already serving 4 years’ imprisonment in DCCC 1073/2023, in which most of the offences were committed before the present offence.[15] Although he had been arrested for those offences from the same operation and arrest at the hotel, she considered them completely different in nature from the trafficking offence. Applying the totality principle, she ordered that 6 months of the sentence in this case should run concurrently with the sentence in DCCC 1073/2023, with the balance consecutive, resulting in an overall term of 10 years and 6 months’ imprisonment. The alleged assistance 16.The applicant submits that he has cooperated with the authorities by providing information for which he should receive a discount on his sentence. The respondent has followed the procedure set out in HKSAR v Yeung Hoi Ting[16] and filed with the court[17] an affirmation from Senior Inspector Marilyn Au dated 15 September 2026. She set out the background of the cases, the assistance rendered by the applicant, and the police’s assessment of the assistance. Senior Superintendent Tang Yick-kay Basil, has examined and certified the facts as stated in the affirmation. 17.As noted, the applicant gave two non-prejudicial statements on 2 September 2024 (before he was sentenced in DCCC 1073/2023) and 29 July 2025 (after he was sentenced in the present case) respectively.[18] Senior Inspector Au stated that the police had assessed the information provided in the two non-prejudicial statements as being of “no practical use”. 18.It seems that this assessment has been based on the credibility of the applicant and the reliability of the information that he has provided. This Court, in Yeung Hoi Ting[19], has emphasised the important role performed by law enforcement agencies and the prosecuting authority in assessing the usefulness of a defendant’s assistance. As stated in HKSAR v M [20]; and HKSAR v X [21], the evaluation of a person as a witness is a matter entirely for those involved in the investigation and prosecution of an alleged criminal offence, who are intricately involved in the case and possess an overall appreciation of the facts and circumstances, some of which may not form part of the public record. There is nothing to indicate that the assessment in this case warrants appellate scrutiny. The sentence and the consecutive element 19.The judge correctly noted that the baseline sentence derived from the quantity of drugs for 54.16 grammes of Ice was 9 years and 11 months’ imprisonment. It was clear from the quantity of Ice and the related items and paraphernalia that the room was used for drugs to be transacted and consumed. It was accepted on the applicant’s behalf that he had arranged to rent the room and had further booked the room in another person’s name. He claimed that he stored the drugs in the room for HK$300 per day and that he was entitled to take some of the drugs for himself.[22] At the material time, CCTV footage showed people entering and leaving the room. While the applicant has an appalling criminal record, there was no prior conviction for trafficking to warrant an enhancement to his sentence. The judge was obviously influenced by the fact that he had been given numerous opportunities to address his drug addiction but had continued to commit drug and drug-related offences. However, the judge was right to adopt a higher starting point than the arithmetical calculation to reflect his role and culpability in the enterprise. Given the facts and circumstances of the case, a starting point of 10 years and 6 months’ imprisonment was appropriate, and after a one-third discount for his guilty plea, the resultant sentence of 7 years’ imprisonment bears a proper relationship to his overall criminality and is not manifestly excessive. 20.The judge ordered that 6 years and 6 months of the drug trafficking sentence of 7 years’ imprisonment should run consecutively with the sentence of 4 years’ imprisonment for the District Court proceedings. This set of offences was legally and factually distinct from the drug trafficking offence, and constituted a separate course of criminal conduct, which concerned a distinct fraudulent scheme and the dealing with significant proceeds of crime. The applicant pleaded guilty to 19 charges relating to a scam in which he dishonestly obtained control of telephone numbers belonging to two cryptocurrency trading companies and three individuals by posing as the owner of the telephone numbers and making false reports to the police and the relevant telecommunications shops that the telephones had been lost. He induced various victims to transfer a total of approximately HK$500,000 to bank accounts linked to the telephone numbers in purported exchange for cryptocurrency. The funds were misappropriated, and it was also revealed that he controlled five bank accounts in which he dealt with approximately HK$1.5 million, representing the proceeds of crime. 21.When an offender is convicted of offences which are separate in time and nature and do not form part of a single transaction, it will generally be appropriate to structure the sentences so that they run consecutively rather than concurrently, provided they do not arise from the same transaction or a single continuous incident. If the offences occur on separate occasions, involve unrelated facts, or are driven by distinct criminal intents, consecutive sentences are usually appropriate, so that each episode of criminality is properly recognised and not left unpunished. Even when consecutive sentences are applied, courts must stand back and review the cumulative effect of the sentences through the prism of the totality principle, to ensure that the overall sentence bears a proper relationship to the overall criminality and is not excessive or crushing in all the circumstances. The court must balance the requirement to punish separate criminal endeavours while ensuring that the ultimate total does not exceed what is called for by the whole of the criminality. As stated by this Court in HKSAR v Lin Chi Man [23]:
22.In the present case, the applicant was convicted of a drug trafficking offence alongside fraud and money laundering offences which were independent of the drug trafficking and formed a separate course of criminal conduct. Each set of offences required its own distinct criminal intent and specific steps in its execution. As the criminal acts comprised separate transactions, different in time and character, wholly concurrent sentences would not adequately recognise the additional culpability associated with the separate offences, and, as the societal interests harmed by drug trafficking on the one hand and by fraud and money laundering on the other are not the same, separate punitive measures are warranted. The two sets of crimes are very serious and should be distinctly penalised so that the total sentence reflects the public opprobrium for such criminal endeavours. The judge’s allowance of a concurrent term of 6 months represented a proper application of the totality principle and appropriately moderated the aggregate term to ensure that the total sentence was not excessive, having regard to that principle. Conclusion 23.For these reasons, I do not find the grounds of appeal to be reasonably arguable and the applicant’s application for leave to appeal against his sentence is refused. The applicant has been informed of the consequences of renewing his application, including the risk of a loss of time order.
Ms Sabra Lo, SPP, of Department of Justice, for the respondent Mr Victor Lee and Mr Leon Chan, instructed by Eric Cheung & Lau, Solicitors, assigned by the Director of Legal Aid, for the applicant [1] HKSAR v Jhamal-Azad [2024] HKDC 1743. [2] Amended Perfected Grounds of Appeal dated 7 September 2026. [3] Appeal Bundle (AB), 42-82. See also AB, 85-107. [4] Including four charges of obtaining services by deception (Charges 1, 6, 13 and 15), two charges of fraud (Charges 9 and 10), one charge of theft (Charge 11), five money laundering related charges (Charges 2, 3, 4, 8 and 12), two charges of knowingly misleading a police officer by giving false information (Charges 5 and 14), one charge of possession of false instruments (Charge 16), one charge of using an identity card relating to another person (Charge 17), one charge of driving without a valid driving licence (Charge 18), one charge of using a motor vehicle without third-party insurance (Charge 19) and one charge of going equipped for stealing (Charge 20). See AB, 42-51. [5] See AB, 89-94, at [2]-[15]. [6] AB, 69-70, at [27]-[30]. [7] AB, 3-6. [8] AB, 25-31. Apart from his convictions in DCCC 1073/2023, the applicant had prior convictions for offences of theft, fraud and fighting in a public place between 2010 and 2021, for which he had received two probation orders, a compensation order, a community service order and a Rehabilitation Centre order in the Magistracy. He had breached the probation orders on two occasions in 2011 and failed to answer court bail on two occasions in 2018. [9] AB, 34, at [6]. [10] AB, 18I-19H. A urine test dated 11 September 2023 was produced in mitigation, which showed that the applicant tested positive for amphetamine. [11] AB, 11N-O. [12] AB, 11R-15N and 23, at [13]-[14]. [13] HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138. [14] AB, 9H-L. [15] The relevant documents of DCCC 1073/2023 were marked as MFI-4 and MFI-5. See AB, 42-107. [16] HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516. [17] Respondent’s Supplemental Written Submission dated 2 October 2026. [18] See Affirmation of Senior Inspector Marilyn Au, Exhibits “AM-1” and “AM-2”. [19] Yeung Hoi Ting, at [83] and [95]-[97]. [20] HKSAR v M [2021] 5 HKLRD 315, at [17]. [21] HKSAR v X [2025] 1 HKLRD 431, at [18]-[20] and [22]. [22] AB, 18I-19G. [23] HKSAR v Lin Chi Man [2024] 3 HKLRD 83, at [64]. | ||||||||||||||||||||
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