HKSAR v. Tabima Cortes Julio Cesar

CACC 334/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 334 OF 2016

(ON APPEAL FROM HCCC NO. 437 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.By a notice of application for leave to appeal filed on 27 October 2016 the applicant sought leave to appeal out of time against the sentence of 14 years and 4 months’ imprisonment imposed on him by Deputy High Court Judge Geiser on 26 April 2013, following his plea of guilty, to trafficking unlawfully in 0.69 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the conclusion of the hearing, we refused the application for leave to appeal against sentence out of time. We said that we would give our reasons for judgment in due course. That, we do now.

2.In his affirmation attached to Form XI, the applicant explained his delay in filing the application for leave to appeal against sentence as due to the fact that he was waiting for the results of an application and a renewed application that he be transferred to Colombia to complete his sentence of imprisonment.

Facts

3.On his arrival at Hong Kong International Airport as a passenger on a flight from Dubai on 14 June 2012 and examination of the applicant’s backpack revealed the presence of a slab of a substance wrapped in rubber and carbon paper.  On analysis it was found to be a mixture containing 0.69 kilograms of cocaine, the retail value of which was about $1,000,000.

4.Having been arrested and cautioned for the offence of unlawfully trafficking in dangerous drugs, the applicant remained silent.  However, subsequently in a video record of interview conducted under caution the applicant explained that he had agreed to a request made by a person he called Gabriel to bring the backpack to Hong Kong and to deliver it to a person who would contact him.  He had agreed to do so in return for the settlement of debts that he owed in Colombia.  Gabriel arranged his airline tickets and a hotel reservation in Hong Kong.  The applicant acknowledged that he had “knowingly brought into Hong Kong the cocaine.”

Mitigation

5.In mitigation Mr Adams informed the Court that the applicant was a 49 years old Colombian automobile mechanic with two daughters aged 23 and 19 years respectively, one of whom had cerebral palsy.  Mr Adams submitted that, having regard to the amount of cocaine in which the applicant had trafficked unlawfully the judge ought to take a starting point for sentence of 20 years’ imprisonment.

Reasons for sentence

6.In his reasons for sentence, the judge said of the mitigation that had been advanced on behalf the applicant, namely that he agreed to bring the cocaine to Hong Kong in return for settlement of his debts, was of “no mitigating value.”  On the other hand, the judge acknowledged that the applicant’s plea of guilty was a matter for which he was to be afforded “full credit.”

Starting point

7.The judge acknowledged that the appropriate guidelines in respect of sentencing the applicant was that set out in the judgment of this Court in HKSAR v Abdallah [1]. The appropriate range of sentence after trial for unlawfully trafficking in 600 to 1,200 grammes of cocaine was 20 to 23 years’ imprisonment.  Then, the judge stipulated a starting point to be taken for sentence of 20 years and 6 months’ imprisonment.  Next, the judge said that the fact that the applicant had imported the dangerous drugs into Hong Kong was an aggravating factor in the commission of the offence for which he enhanced sentence by one year’s imprisonment.

Discount

8.Finally, the judge afforded the applicant a discount of one‑third from the resulting total starting point taken for sentence.  Accordingly, he sentenced the applicant to 14 years and 4 months’ imprisonment.

Grounds of appeal against sentence out of time

Application out of time

9.At the hearing, the applicant explained that he had not made his application for leave to appeal against sentence initially because he had been told by a welfare officer at Lai Chi Kok Reception Centre that such an application had to await the result of an application for transfer as a prisoner to serve his sentence in Colombia.  Although he had been legally represented at the hearing at which he had been sentenced he had not been told that there was a time limit in which to file an application for leave to appeal against sentence.  He came to know that to be the case only at the time of his application on 26 October 2016.  He applied for transfer to Colombia in order to serve the remainder of his sentence within a matter of two or three weeks of having been sentenced on 26 April 2013, certainly before 10 May 2013.

Sentence

10.In the grounds of appeal against sentence attached to Form XI, the applicant invited the Court to reduce his sentence of imprisonment by a few months in acknowledgement of the fact that he was a victim of human trafficking.  Then, he contended that the sentence of imprisonment imposed on him was excessive having regard to the sentence imposed on the defendant in HKSAR v Juan Pablo Lizarazo [2]. There, the defendant had pleaded guilty to trafficking unlawfully in 830 grammes of cocaine which he brought into Hong Kong and had been sentenced to 14 years’ imprisonment only.  Next, he submitted that as a foreigner, he was not eligible to apply for what he described as “conditional freedom”, pursuant to Plan A or Plan B.  Also, he contended that he was not entitled to be visited by family and friends.  Finally, he claimed that money found in his possession had been forfeited unfairly.  He had borrowed the money, which he needed to repay.

11.In a letter filed with the Court on 3 March 2017, the applicant sought the leniency of the Court.  He invited the Court to take into account letters written on his behalf by the Reverend Doctor Tobias Brandner and Father Patrick Colgan of the Missionary Society of Saint Columban, both of whom were prison chaplains.  Both of them said that the applicant spoke only Spanish and in consequence encountered difficulties in communication with others whilst in custody.  Further, both of them invited the Court to consider remitting that part of the sentence imposed to reflect the aggravating factor of the importation of the dangerous drugs into Hong Kong.  In addition, the applicant invited the Court to take into account the recent demise of his wife, in consequence of which he was concerned about the welfare of his daughter who suffered from cerebral palsy.  Finally, attached to his letter were letters, dated 3 November 2015 and 20 October 2016, from the Security Bureau of the Government of the HKSAR advising him that his request to be transferred under the provisions of the transfer of the Sentenced Person Ordinance, Cap. 513 had been rejected by the Colombian authorities “…for the reason that no humanitarian criteria were established.”

12.In a letter filed with the Court on 17 March 2017, the applicant provided a copy of a death certificate of his wife.  He said that in consequence of her death his daughter, who was suffering from cerebral palsy, relied on the charity of others for her care.  He asked that the Court reduce his sentence, so that he be permitted to return to Colombia as soon as possible.

The respondent’s submissions

13.Of the issue of the applicant’s application for leave to appeal out of time, Mr Matthew Leung submitted that the Court had to consider the length of and reasons for the delay in the applicant filing a notice of his application.  Section 83Q of the Criminal Procedure Ordinance, Cap. 221 required that notice of such an application be filed with the Court within 28 days from the date of sentence.  Given that the applicant had been sentenced on 26 April 2013 and had not filed his notice of application for leave to appeal until 27 October 2016, the application was 3 years and 5 months out of time.

14.At the hearing, in response to the applicant’s assertion that he had filed his application to be transferred to serve his sentence in Colombia in May 2013, Mr Leung provided the Court with a copy of an ‘Application for Transfer to Colombia’ signed by the applicant dated 26 March 2014, together with memoranda, dated 10 April 2014, in which the application was circulated between the Secretary for Security, the Commissioner of Police, the Department of Justice, the Commissioner of Customs & Excise and the Director of Immigration as part of the procedure for processing the application.  Also, Mr Leung provided the Court with the 2^nd application for transfer made by the applicant, dated 3 February 2016, together with the related memoranda dated 18 February 2016 in which the application was circulated between the same parties described above.

15.In all the circumstances, Mr Leung submitted that no valid explanation had been proffered for that delay.  The delay was inexcusable and inordinate and the application ought to be refused.

16.Of the merits of the application, Mr Leung submitted that the starting point taken by the judge for sentence and the enhancement of sentence were entirely appropriate.  On an arithmetic basis, the starting point to be taken for unlawfully trafficking in 690 grammes of cocaine was 20 years and 5 months’ imprisonment.  Similarly, an enhancement of one year’s imprisonment was appropriate.[3]

17.Mr Leung submitted that the applicant’s reliance on the sentence imposed by Line J in HKSAR v Juan Pablo Lizarazo was misplaced.  He acknowledged that in that case the defendant had been sentenced to 14 years’ imprisonment, having pleaded guilty to having unlawfully trafficked in 830 grammes of cocaine at Hong Kong International Airport on his arrival by air from Brazil.  The judge stipulated a starting point for sentence of 20 years’ imprisonment which he enhanced by one year’s imprisonment for the international element in the commission of the offence. Mr Leung invited the Court to note that, on an arithmetic approach to sentencing, the judge ought to have stipulated a starting point of 21.15 years’ imprisonment.  However, Mr Leung submitted that the issue was not what the sentences of imprisonment were passed on others in similar circumstances, this Court was concerned with whether or not the sentence imposed on the applicant was appropriate.  It was appropriate.

Forfeiture

18.Mr Leung invited the Court to note that the judge’s order for forfeiture of the U$828.50 found in the possession of the applicant was made by the judge without any objection being raised on behalf of the applicant by counsel then representing him.  No doubt, the applicant was possessed of those monies to be able to establish to the satisfaction of the Hong Kong Immigration authorities that he had sufficient means to stay in Hong Kong for the five days that his hotel booking suggested.  The money was “used in the commission of or in connection with” the offence of unlawfully trafficking in dangerous drugs and was liable to be forfeited on that basis.

A consideration of the submissions

Application out of time

19.Section 4(2)(d) of the Transfer of Sentenced Persons Ordinance, Cap. 513 provides that the Chief Executive of the HKSAR shall not issue an outward warrant in respect of a sentenced person, inter‑alia, unless:

“ no further criminal proceedings relating to the sentenced person in respect of the conduct which gave rise to the sentence imposed are pending in Hong Kong.”

20.Given that the applicant had been represented by very experienced counsel in the Court of First Instance, we have no doubt that the applicant would have been informed at, before or after the time of sentence of the time limit of 28 days in which notice was required to be given of an application for leave to appeal against sentence.  It is an important part of the duties of counsel representing a defendant in a trial court to advise him of his rights of appeal.  Similarly, we have no hesitation in rejecting the applicant’s assertion that he was advised by the welfare officer that he could initiate an application for leave to appeal against sentence after determination of his application for transfer to serve his sentence in Colombia.  The time limit for filing an application for leave to appeal against sentence of 28 days is not only perfectly clear but also well-known to both prisoners and those who work in institutions operated by the Correctional Services Department.

21.Having been confronted with his application for transfer to Colombia to serve his sentence of imprisonment, dated 26 March 2014, the applicant acknowledged his signature on the form and reluctantly accepted that his repeated assertion that he had made the application in May 2013 was incorrect.  Thereby, he acknowledged that there had been a delay of 11 months after sentence before he made the application.  Similarly, he accepted that there was a delay of several months, after he had been informed of the refusal of that application by the letter from the Security Bureau dated 3 November 2015, before he made the 2^nd application dated 3 February 2016.

22.Clearly, having taken no steps at all for 11 months, the applicant chose to seek to be repatriated to Colombia first and only when his renewed application met with a refusal, as has his earlier application, did he give notice of his application for leave to appeal against sentence.  Choosing to take that course does not afford the applicant a reasonable ground for explaining delay.  No such ground has been advanced.

The merits of the application

23.The short reasons for sentence given by Line J in HKSAR v Juan Pablo Lizarazo do not disclose any grounds on which he could have determined that the appropriate starting point for sentence was more than one year’s imprisonment less than that determined by an arithmetic approach.  None is apparent.  The defendant appears to have been the beneficiary of an unjustifiably lenient sentence.  Be that as it may be, the sentence imposed on that defendant is of no assistance to the applicant.  The only issue for this Court is whether or not the sentence imposed on the applicant was appropriate.

24.We are satisfied that the starting point taken for sentence and the level of enhancement of that sentence made by the judge was entirely appropriate.  In making that determination in respect of the level of enhancement of sentence of one year’s imprisonment, we are mindful of the fact that the judgment in HKSAR v Chung Ping Kun, to which Mr Leung has referred the Court in that context, was delivered some two months after the applicant was sentenced and more than two years after the commission of the offence.  Nevertheless, it is clear from the sentences imposed on defendants by other judges, to which reference was made in the judgment, that a sentence of at least one year’s imprisonment was normally imposed for unlawful trafficking in amounts similar to the quantity of cocaine in which the applicant trafficked unlawfully.  The “broad guideline” for sentencing articulated by the Court in respect of unlawful trafficking in amounts of between 500 grammes and 1,000 grammes resonated with the practice existing at the time of the commission of the offence by the applicant.

25.Whilst the Court has sympathy for the applicant’s personal circumstances, in particular that following the death of his wife the care of his 20-year-old daughter who is suffering from cerebral palsy is in the hands of those willing to provide charitable assistance, that is not a matter of relevance to this Court in consideration of whether or not the sentence imposed on the applicant was appropriate for an offence of such gravity.

26.The fact that, because of language difficulties, the applicant has encountered difficulties in communication with others whilst serving his sentence of imprisonment and that there are obvious difficulties in him receiving visits from family and friends are problems that he has visited on himself.  This Court noted long ago in its judgment in HKSAR v Hong Chang Chi that:[4]

“ Drug traffickers from abroad, importing drugs into Hong Kong, should plainly understand that they will receive no sympathetic consideration whatsoever on account of their status as foreigners or, as in this case, on account of their incarceration some distance from home. On the contrary, in cases of this kind, the very act of importation from abroad, is an aggravating factor.”

27.The applicant’s reference in the grounds of appeal against sentence to the fact that, as a foreigner, “…he had no right to conditional freedom under Plan A and Plan B” appears to be a reference to the schemes provided for by section 7 of the Prisoners (Release Under Supervision) Ordinance, Cap. 325, pursuant to which a prisoner is eligible for release under supervision, having served a stipulated proportion of the sentence of imprisonment to which he is subject.  It appears that the applicant submits that the fact that he is unlikely to be released under supervision pursuant to those provisions ought to have been taken into account by the judge in sentencing him.  That submission, in essence, was advanced and rejected by this Court in the consolidated cases of HKSAR v Sarkuna and HKSAR v Kenichi.[5]  Giving the judgment of the Court, Stock VP said:[6]

“ ... We are satisfied that it would be inappropriate for a sentencing court to take into account, when sentencing, the assumed practical non-availability of a supervision order to the offender who falls to be sentenced. This is because sentencing proceeds upon known facts and a system whereby a non-resident is given some automatic discount because of the supposed disadvantage under which he labours is one that would presuppose that all other prisoners, provided the term imposed is at least three or two years as the case may be, are in fact routinely released early under one of the two schemes; a supposition which would be wholly erroneous. Release under either scheme is a question of discretion to be considered according to a prisoner’s suitability at the time of eligibility; suitability that cannot possibly be predicted at the time of sentence.”

Forfeiture

28.As noted earlier, no objection was raised before the judge in respect of the application that the monies found in the possession of the applicant be forfeited.  In all the circumstances, that is hardly surprising.  Clearly, the judge was entitled to order the forfeiture of those monies.

Conclusion

29.We are satisfied that the applicant has offered no satisfactory explanation for the delay in filing his application for leave to appeal against sentence with the Court.  For those reasons, given that we were satisfied that there were no merits in the application, we refused the application for leave to appeal against sentence out of time.

Mr Matthew Leung, SPP, of the Department of Justice, for the respondent

Applicant appeared in person