HKSAR v. Muhammad Haji and Another

CACC 378/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 378 OF 2010

(ON APPEAL FROM HCCC 98 OF 2007)

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BETWEEN

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court) :

1.The applicants, who appear in person, seek leave to appeal out of time against the sentences of 18 years’ imprisonment imposed upon each of them on 29 October 2007 by Barnes J following their pleas of guilty to a single count of conspiracy to traffic unlawfully in a dangerous drug, namely 1,956.43 grammes of heroin hydrochloride. The 1^st and 2^nd applicants filed their notices for leave to appeal against sentence out of time on 22 and 26 October 2010 respectively.

2.The applicants’ pleas of guilty to that count were tendered in a re-trial on a fresh indictment.  At the first trial the applicants had been found guilty after trial before Deputy Judge Line, as he was then, and a jury.  On appeal, those convictions were quashed by this court on 22 May 2007.

The indictment

3.The indictment averred that the applicants had conspired together and with Muhammad Riaz Khan (“Riaz”) in Hong Kong between 28 November and 1 December 2001 to traffic unlawfully in heroin hydrochloride.

The facts

4.The 2^nd applicant and Riaz arrived in Hong Kong on the same flight from Pakistan on 22 November 2001.  The 1^st applicant arrived from Pakistan the following day.  On 29 November 2001, Mr. Enrique Cancel, an undercover agent of the Drug Enforcement Agency of the Department of Justice of the United States of America (“DEA”) contacted Riaz by telephone and, having told him that he represented a Mr. Maricon, arranged to meet at the Regal Airport Hotel, at which the undercover officer was staying.  As a result, the 1^st applicant and Riaz met the undercover officer at the Regal Airport Hotel and, after they had gone to his room, Room 5154, discussed in code the sale to him of a consignment of heroin.

5.On the following day Riaz, the 1^st and 2^nd applicants travelled on the same airport bus from Tsim Sha Tsui to the airport.  The 2^nd applicant was in possession of a suitcase which, after it had been seized and examined subsequently by Customs officers at the airport, was found to contain heroin, the subject of the count, concealed in the lining.  On arrival at the airport the 2^nd applicant placed the suitcase on a trolley and followed the 1^st applicant and Riaz into the Departure Hall.  There, the 1^st applicant took over possession of the trolley and suitcase, sitting nearby on a chair.  Having left to make a telephone call, the 1^st applicant returned, opened the suitcase with a key and looked inside.  For their part, the 2^nd applicant and Riaz made unsuccessful enquiries at the Regal Airport Hotel as to the whereabouts of the occupant of Room 5154.  Then, they returned to the Departure Hall and rejoined the 1^st applicant, at which point they were intercepted by Customs and Excise officers.  The 1^st applicant was found in possession of a key to the suitcase.

Reasons for sentence

6.In sentencing the applicants the judge stated that, having regard to the guidelines articulated by this court in R v Lau Tak Ming [1990] 2 HKLRD 370, she took 24 years’ imprisonment as the appropriate starting point for sentence.  In doing so, she noted that 24 years was the sentence of imprisonment imposed on the applicants at the first trial and was the sentence of imprisonment that Riaz Khan was serving.

Discount

7.The judge acknowledged that the applicants had each indicated in an earlier pre-trial review that on arraignment they intended tendering pleas of guilty to the count on the indictment.  The judge accepted that in some other cases, in dealing with defendants who pleaded guilty in re-trials, other judges had been prepared to allow them a one third discount from that taken as appropriate for the starting point.  However, she observed that in  HKSAR v Chiu Chi Wai [2000] 1 HKLRD 704 this court had declined to interfere with a trial judge’s discretion in affording a discount of only 25%, to that taken from the starting point, in such circumstances.  The judge found that the applicants’ pleas of guilty could not be described as “timely” and determined that the appropriate discount from that taken for the starting point was 25% only.  Accordingly, the judge imposed sentences of 18 years’ imprisonment on each of the applicants.

Applications for leave to appeal out of time against sentence

8.The applicants offered no explanations, in the affirmations that they filed together with their Form XI Notices of their intention to make these applications, for the delay of three years in making the applications.  Today, the applicants informed the court that they had delayed filing their applications because they had waited to see the progress of Riaz’s application for leave to appeal against conviction.

Grounds of appeal against sentence

9.In their home-made grounds of appeal against sentence, the applicants complained that the starting point taken for sentence was too high.  The 1^st applicant referred the court to two other judgments of this court concerned with sentences imposed in respect of offences of conspiracy to traffic unlawfully in dangerous drugs, namely HKSAR v Wilson Alberto Corredor Medina (CACC 296/2007; unreported, 31 January 2012) and HKSAR v Mok Swee Chuan (HCCC 365 of 2002).  In each case, the respective defendant had been sentenced to 21 years’ imprisonment, although he submitted each case involved more dangerous drugs than the instant case.  Next, it was submitted that the judge ought to have given the applicants a discount of one third, rather than 25%, from the appropriate starting point.  Then, each of the applicants asserted that their respective spouses were seriously ill and in need of their assistance.  Finally, the applicants said that, having served 11 years of their term of imprisonment, they were remorseful for their conduct.

A consideration of the submissions

10.In considering whether or not to grant leave to appeal out of time this court has regard to the length of the delay, the reasons advanced for that delay and the merits of the proposed grounds of appeal.  The court does so in order to ensure that, by refusing leave to appeal, the court is not shutting out a substantial and plainly arguable grounds of appeal (see R v Wong Kai Kong [1990] 1 HKC 279; HKSAR v Leung Yiu Ming & Anr [2000] 1 HKLRD 247; cited with approval in HKSAR v Medina CACC 296/2007; unreported 31 January 2012).  As was noted by Silke VP in Wong Kai Kong (page 281 C - D), the longer the delay the more onerous is the duty on the applicant to advance a cogent explanation for delay.  None is advanced by the applicants.

11.In Medina the applicant had been convicted after trial of an offence of conspiracy to traffic unlawfully in cocaine.  The applicant and his co-conspirators had negotiated to supply an undercover agent of the DEA cocaine, in the region of 20 to 50 kilogrammes. In the course of those negotiations, a sample of 680.18 grammes of cocaine was supplied to an undercover Customs and Excise officer.  As this court noted in its judgment (paragraph 7) :

“ In passing sentence, the judge accepted that it could not be said with certainty what amount of drugs the syndicate was prepared to sell to PW1 (the undercover DEA agent), and that it was not clear if the syndicate was in fact prepared to sell any drugs to PW1 as the syndicate was distrusting PW1 who did not pay for the sample or return it. The judge declined to accept the submission of defence counsel that he should assess the starting point of the prison term based purely on the quantity of the sample delivered to PW1. Although no agreement was reached at the end of the day, it was quite clear that the jury found that the two accused with the other persons named on the indictment, did agree, if all the terms could be agreed, that some cocaine would be sold to PW1.”

12.Although the court determined that the applicant had not advanced an acceptable explanation for the very substantial delay in filing his application for leave to appeal against sentence out of time, it went on to consider the appropriateness of the sentence of 21 years’ imprisonment imposed on the applicant (paragraph 14) :

“ Even if only the quantity of narcotic content of the sample was taken into account, the sentence cannot set to be manifestly excessive. Besides we think the judge was correct in declining to base his starting point on the weight of sample for the reason he gave.”

It is readily apparent that the authority relied upon by the 1^st applicant is of no assistance to him whatsoever.  Similarly, the sentence imposed in Mok Swee Chuan is irrelevant.  It did not concern an offence of conspiracy to traffic unlawfully in dangerous drugs.  The count on the indictment alleged unlawful trafficking simpliciter and the drug involved was methamphetamine hydrochloride, ‘ice’, not heroin.  The applications for leave to appeal were in respect of conviction, not sentence (see also HKSAR v Mok Swee Chuan CACC 96/2007; unreported, 15 January 2010).

Starting point

13.In the judgment in Lau Tak Ming this court said that unlawful trafficking in heroin in amounts of between 400 and 600 grammes attracted sentences of imprisonment in the range of 15 to 20 years.  The court went on to say that (page 387E), “Amounts of over 600 grammes fall into the ‘very large quantities’ category” and went on to note that the maximum sentence provided by the legislation was life imprisonment.  Given all the circumstances of the commission of the offence and, in particular, the fact that the amount of heroin in which the applicants compared to traffick unlawfully was over three times greater than that for which a sentence of 20 years’ imprisonment is appropriate, the starting point taken for sentence of 24 years’ imprisonment was entirely justified.

Discount

14.Given that the applicants had pleaded not guilty at their first trial in March 2003, the judge was entitled to regard their pleas of guilty on arraignment on a fresh indictment in their retrial in October 2007 as not having been offered in a ‘timely’ manner, so that the applicants were not entitled to the one third discount usually afforded such pleas of guilty.  The 25% discount that the judge afforded the applicants, from the starting point taken for sentence, was the same measure of discount afforded by the trial judge in Chiu Chi Wai, which this court determined to fall within the discretionary power of the judge in sentencing in that case (see page 707 G - H).

Conclusion

15.There are no merits in the applicants’ applications for leave to appeal against sentence out of time, which are dismissed.

Mr. Franco Kuan, SPP, of the Department of Justice, for the respondent

The 1^st and 2^nd applicants in person