HKSAR v. Montoya Munoz Mauricio

CACC 192/2018

[2018] HKCA 931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 192 OF 2018

(ON APPEAL FROM HCCC NO 44 OF 2018)

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Before: Hon Pang and Zervos JJA in Court

Date of Hearing: 27 November 2018

Date of Judgment: 11 December 2018

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.The applicant pleaded guilty to one count of ‘trafficking in a dangerous drug’, namely 933.59 grammes of a powder containing 551.49 grammes of cocaine, and was sentenced by D’Almada Remedios J (‘the Judge’) to 11 years and 1 month’s imprisonment.  He seeks leave to appeal against that sentence.

THE CHARGE

2.The charge was that, on 13 September 2016, in a flat the exact address of which is not important, the applicant trafficked in the said drug together with one Muriel Correa Edward, known in the proceedings below as “D1” or “the 1^st defendant”.

BRIEF FACTS

3.In her oral reasons for sentence, the Judge recounted :

“ On 13 September 2016 at around 3.13 pm, customs officers spotted you and Muriel Correa Edward, whom I shall refer to as D1, looking around furtively after coming out from Fu Lok Building. When you were intercepted, you struggled to escape but you were subsequently subdued. Upon search, nothing illegal was found on you but a set of five keys.

Upon inquiry about the keys, the 1st defendant led the customs officers to Room B in Fu Lok Building. The keys on you were tested and they could access that room. A search of the room was conducted. On top of a cabinet, a packet of suspected cocaine was found. A tenancy agreement showed you were the tenant of that room since 1 July 2016. That room was searched later that day in the presence of you and the 1st defendant.

In the false ceiling above the open kitchen area of that room, some plastic bags and newspapers dated after 14 July, wrapped the drugs as stated in the charge. There were 83 pellets and 8 packets of the drugs, cocaine. Around 600 small, empty resealable plastic bags and one electronic scale was also found with the drugs.

You were arrested and cautioned about the items found in the false ceiling and remained silent. Later, you were interviewed in a video-recorded interview and you said you did come to Hong Kong from Columbia alone in May 2016 but you could not find a job in Hong Kong.

The street value in September 2016 of all the cocaine seized was in the sum of HK$1,037,218.49.

Through your plea of guilty, you now admit and accept that, at all material times, you had knowledge about the cocaine seized from the false ceiling in that room and you possessed them for the purpose of trafficking.”

MITIGATION & SENTENCE

4.The Judge continued :

“ Defendant, you are 34 years of age, have a clear record and are a Columbian national. Your counsel, Mr John McNamara, has given very full-detailed mitigation on your behalf. He has submitted that mitigation in writing and also has submitted eight letters from family and friends.

In short, you had come to Hong Kong as you had borrowed money from the 2nd defendant (sic) for a business you had been running in Columbia ……. Due to being, I believe, targeted to pay extortion protection money …… your business had difficulties and you came into large debt. As you didn’t want to bother your parents or family, you then borrowed the money from the 1st defendant.

The 1st defendant is your wife’s cousin. As you were unable to repay him the debt, he suggested to you to come to Hong Kong to traffic in drugs to pay off your debt to him. Feeling under great pressure, you agreed …... You left behind in Columbia your family, your children who are 8, 15, 19 from a previous marriage and a 6-year-old daughter from your present wife.

You are a well-educated man …...

You come from a very successful family …… you have close ties with …… people in good positions …... They have all spoken glowingly about you, and certainly that what you have done shows that this is very much out of character.

……

Mr McNamara said that your wish was to show your family you could get by on your own without their assistance, and therefore, came here to commit this very serious crime. When you arrived here …… the 1st defendant arranged and directed all your activities whilst you were here. You came here thinking you had no alternative.

Your ticket from Columbia was paid for by the 1st defendant, you were picked up at the airport by the 1st defendant and your apartment was arranged by the 1st defendant. The 1st defendant had furnished your flat where these drugs were found and he had a key with unlimited access to your flat.

Your responsibility or duty was to deliver small packets of drugs to clients. D1 gave you all the orders and sometimes, he would pick up the drugs from your apartment and sometimes, he would bring drugs to your apartment. He would pay you HK$5,000 per week.

It is said that the large quantity of drugs found in the flat, that is the subject drugs of this charge, belonged to the 1st defendant.  You had been given them by another Columbian to store in your flat.  It was the direction of the 1st defendant that these drugs would be stored in the false ceiling.”

5.Then coming to the first issue which concerns this application, namely the assistance that the applicant had provided to bring D1 to justice (the “Question of Assistance”), the Judge said :

“ …... Apart from [pleading guilty], there is no dispute between the prosecution and Mr McNamara that you have given assistance to the authorities. That assistance is giving NPS statements to the prosecution principally in respect of the 1st defendant.

I am informed that the prosecution were not going to charge the 1st defendant.  And as stated in Mr McNamara’s further mitigation, that is because there was no evidence or insufficient evidence against him.  However, as conceded by Ms Chit for the prosecution, without your evidence against the 1st defendant, they would not have been able to proceed against the 1st defendant.  Therefore, it is as a result of your direct assistance that the 1st defendant was charged with this charge of trafficking in dangerous drugs.  You were willing and prepared to give evidence against D1 had he pleaded not guilty.”

6.She explained how in those circumstances the applicant’s reduction in sentence should be calculated, after taking into account his guilty plea :

“ Stopping there, there is no dispute that on that basis alone, you are entitled to a 40 per cent discount as is laid down in the case in HKSAR v Z. The question here is whether you are entitled to more than a 40 per cent discount. Mr McNamara has stated that you are entitled to a 50 per cent discount because you were willing and prepared to give evidence against the 1st defendant.

It matters not that you did not go into the witness-box and testify against the 1st defendant. He relies heavily on the case of HKSAR v Cheng Chong Shing [2003] 3 HKLRD 989. Whereby at page 994, the Court of Appeal said in its judgement on 21 October 2003, that :

‘ This court had accepted in the past that if appellants were prepared to testify against their confederates should not lose the benefit they would have gained from so doing because the confederate accepts the truth of the case against him and pleads guilty.’

It went on to say :

‘ We are of the view that it is appropriate to reduce the appellant’s sentence to reflect his co-operation with the authorities and the fulfilment, so far as he has been able, of his promise to assist in bringing other offenders to justice. We are however not persuaded that the reduction should be as high as the 50 per cent reduction Mr Marray argued for.’

It is Mr McNamara’s submission that even if you, the 2nd defendant, had not given evidence, you are entitled to a discount of 50 per cent from that starting point.

The prosecution has referred to the case of Herrera Jhorman CACC 440/2011, also a Columbian there, where the Court of Appeal discussed the discount for those defendants who did assist the authorities and did not give evidence in the witness-box, and held that those defendants were not entitled to 50 per cent discount.

Mr McNamara seeks to persuade this Court that the decisions of HKSAR v Herrera Jhorman and HKSAR v Z, which is the Court of Final Appeal decision were made per incuriam, and that I am bound by the decision in Cheng Chong Shing.  Cheng Chong Shing was a case before Herrera Jhorman and before the Court of Final Appeal decision in HKSAR v Z.

I am bound by decision of the Court of Final Appeal.

I have also been directed to many cases since the Court of Final Appeal’s decision on discounts available. These cases are as follows, which I shall not go through in full.  They are, as I have mentioned, Herrera Jhorman, Tsoi Sin Yee, CACC 27/2014, Lau Pui Yan, Mimi, CACC 101/2015, Tsang Ka Wing, CACC 97/2016.

It is clear to me that in those cases, that defendants who came into witness-box and gave evidence against their co-accused, it is those defendants who are entitled to a 50 per cent discount.  I therefore do not consider that you are entitled to a 50 per cent discount.

As to the matter of a further discount, Mr McNamara says that you are in a category of a supergrass and should therefore be entitled to not only 50 per cent but two-thirds of the starting point.  I also do not consider you to be in the supergrass category.  But I do accept that given the relationship between yourself and D1, that is that D1 is your wife’s cousin and that he may know the intricate details of your family and friends, there is a concern for you and the safety of your family and friends in Columbia.  I might add, this is not supported by any evidence at all.  I do however consider that you should be entitled to a 45 per cent discount.”

7.Regarding the foreign element involved in the applicant’s offence, which gives rise to the second issue in this application (the “Question of Foreign Involvement”), the judge further observed that :

“ On the other hand, there is a very serious aggravating factor in this case. Defendant, you were recruited by the 1st defendant to come to Hong Kong to commit a crime. You knowingly came to Hong Kong to commit a very serious crime of trafficking in dangerous drugs.

As was said in HKSAR v Sandagdorj Altankhuyag[2014] 1 HKC 2006. It is one thing to commit crime whilst visiting Hong Kong, it is quite another to come to Hong Kong in order to commit crime.

Defendant, you came here organised by D1. You were recruited from Columbia. There was a clear element of planning and organisation by D1, and you knowingly came here to commit these crimes as you owed money to him. I consider this to be a very, very serious aggravating factor.

I had sentenced D1 yesterday for the exact same offence for the exact same drugs and almost identical facts.  I found as an aggravating factor for D1 was that he remained in Hong Kong as a Form 8 holder as he was a torture claimant.  I enhanced his sentence for that aggravating factor by 18 months, taking into account the offence itself and the content of narcotic.  I think appropriate, the same enhancement in your case.”

8.Finally, taking all the relevant factors into consideration, the Judge pronounced the applicant’s sentence as follows :

“ For trafficking in the dangerous drug, cocaine, the leading case is that of Lau Tak Ming. The guideline for trafficking between 400 and 600 grammes is that of 15 to 20 years’ imprisonment as a starting point after trial. You were trafficking in 551.49 grammes of cocaine. Had you been convicted after trial, I would have taken a starting point of 18 years and 9 months’ imprisonment. I enhance that sentence, as there is an aggravating factor that you have come to Hong Kong to commit a serious offence, by 18 months which would make the sentencing point one of 20 years and 3 months’ imprisonment.

Given your early plea of guilty and your assistance to authorities, including the fact that your family and friends’ safety may have been at risk, I discount that term by 45 per cent.  You are therefore sentenced to 11 years and 1 months’ imprisonment.”

THIS APPLICATION

9.As against the above sentence, Mr John McNarama, who acted for the applicant both here and below, repeated with some modification his submissions in mitigation concerning the Question of Assistance and recast them into two grounds of appeal.  Using our own paraphrase, they are as follows :

Ground 1

The Judge was wrong not to accord a larger discount to the applicant for the assistance he rendered because –

D1 played a far greater part in the offence.  But he would not have faced trial, plus pleading guilty, if not for the applicant’s non-prejudicial statement the content of which the applicant was prepared but not ultimately required to prove in the form of sworn testimony in court.

In the circumstances, following the case of HKSAR v Cheng Chong Shing [2003] 3 HKLRD 989, which being a Court of Appeal decision was directly binding on the Judge, the applicant was entitled to 50 as opposed to any lesser percentages of discount in sentence.  In short, the applicant should not be penalised for not having to give evidence for reasons that were beyond his control.

Ground 3

In view of the factors below, following the cases of Asher Sivan & Others (1988) 10 Cr App R (S) 282 and R v Chan Fu Kui [1986] HKLR 967, the Judge was wrong not to accord a larger discount to the applicant on account of the danger to which he had exposed himself and his family –

D1 had serious criminal connections in Columbia.

The applicant whose wife and family still lived in Columbia was related to D1 by marriage.

10.Regarding the Question of Foreign Involvement, an issue previously unvisited in his submissions in mitigation, a separate ground of appeal was put forward by Mr McNarama as follows :

Ground 2

The enhancement in sentence by 18 months was excessive in that the Judge failed to give sufficient weight to the fact that the applicant came to Hong Kong to commit a crime because he was forced to and had no alternative.

DISCUSSION

11.In HKSAR v Cheng Chong Shing [2003] 3 HKLRD 989, a two-member division of the Court of Appeal stated, at 994B–C :

“ This Court has accepted in the past that appellants who are prepared to testify against their confederates should not lose the benefit they would have gained from so doing because the confederate accepts the truth of the case against him and pleads guilty.”

12.If that is to be understood as an exact equation in sentence reduction of the two situations under consideration, which we doubt, it is inconsistent with what the Court of Final Appeal observed to be the prevailing trend in Z v HKSAR [2007] 1 HKLRD 977, namely a “usual discount” of 40% (including the one-third reduction for a guilty plea) for defendants who had provided assistance to the authorities without testifying against those about whom they had provided information, and a “usual discount” of 50% (including the one-third reduction for a guilty plea) where a defendant had not only given information but had proceeded to give truthful and material evidence.

13.It is also worth noting that, regardless of its statement quoted above, the Court in Cheng Chong Shing was of the view that the discount in that case should not be as high as 50% (at 994D–E).

14.As regards the reason behind this general demarcation in the discounts to be given, some insight can perhaps be gleaned from what Lunn VP said in HKSAR v Tsoi Sin Yee CACC 27/2014 (15 July 2014, unreported) at paragraph 19 of the judgment :

“ We are satisfied that generally a defendant who is not called upon to give evidence in support of the account he has set out in a witness statement is not entitled to the same discount in sentence as a defendant who does testify for the prosecution and is subjected to the scrutiny of cross-examination.” (emphasis added)

15.Yeung VP made the same point in HKSAR v Cheng Weiguang CACC 97/2017 (23 May 2018, unreported) at paragraph 15 of that judgment :[1]

“ In our view, if an offender who pleads guilty and also assists the law enforcement authority, including providing useful crime information and being willing to testify in court, for the purpose of bringing other offenders to justice, is not required to testify in court eventually because of certain reasons and hence does not need to face the hardship in giving evidence in court, then he should be given a discount of 40% to 45% in sentence. Within such range, the judge dealing with the case has the discretion to give an appropriate discount in sentence as he thinks fit depending on the circumstances of individual cases.” (emphasis added)

16.Incidentally, Yeung VP’s reference to a 40 – 45% discount was relevant to our core discussion, and was empirically based on a number of past decisions.  It shows that, notwithstanding the observation of the Court of Final Appeal in Z v HKSAR, but in no way contrary to it, there exists a range of sentences that have been accepted as appropriate for willing but frustrated associates in crimes turned prosecution witnesses.

17.That there is such a situation was discussed in HKSAR v Leung Kai Wing CACC 229/2016 (17 July 2017, unreported) and HKSAR v Lo Sze Tung Stephanie CACC 190/2017 (25 July 2018, unreported).  For present purposes, however, it is enough to say no more than that it was observed by McWalters JA in Leung Kai Wing, at paragraph 29 of the judgment :

“ It is rare for a defendant who does not testify to be given a discount as much as 50%.”

18.Noting that this did happen in HKSAR v Tso Kin Hong & Another [2008] 1 HKC 84, which in fact was the only example referred to in Leung Kai Wing and Lo Sze Tung Stephanie, McWalters JA explained the underlying circumstances of that case at paragraph 60 of the Lo judgment, as follows :

“ [The] defendants [gave] statements implicating the ringleader of their robbery gang and had agreed to testify against him. However, the ringleader subsequently pleaded guilty. The cooperating defendants made a similar promise in respect of another member of the gang but that person also subsequently pleaded guilty. Noting that both applicants had exposed themselves to the risk of harm by their cooperation and had to be transferred to the security section of Siu Lam Security Centre for their own protection, the Court of Appeal awarded them a 50% discount from the starting point of their sentences.” (emphasis added)

19.In sum, whether a defendant should receive a more than 40% discount will always be a fact sensitive matter.  It is a question that can only be answered by going back to such basics as the nature and extent of a defendant’s assistance, as well as the likely consequences that will face the defendant who offered it: Leung Kai Wing, paragraph 30.

20.In our judgment, the assistance offered by the applicant, including his willingness to testify against D1, was significant but not uncommon: frequently offenders would have walked free if not for the tale-telling of their co-offenders.  For the alleged risks that he had created for himself and his family, a point raised directly from the bar table with no accompanying evidence, the applicant was also generously compensated with an extra 5% in discount in sentence.  We do not think there can be any room for complaint on either front and Grounds 1 and 3 must fail.

21.Coming to Ground 2, we dismiss counsel’s suggestion that the applicant had no option but to go along with D1 as completely baseless.  His case was that “[he] wished to show [his] family [he] could get by on [his] own without their assistance”.  In any event, it is trite that in drug trafficking cases, financial pressure should account for no weight as a mitigating factor lest potential offenders would be encouraged to succumb to it: HKSAR v Somphaksorn Lamyai & Another [2009] 2 HKC 437, paragraph 17; HKSAR v Bayanmunkh [2012] 1 HKC 233, paragraph 11.

22.The conclusion is not as readily apparent in relation to the correctness of the 18-month enhancement in sentence.  On this, our task has been made more difficult by the absence of relevant jurisprudence.  That it is a serious aggravating factor to come to Hong Kong for the specific purpose of committing an offence or offences is beyond doubt: HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 (30 April 2015, unreported), paragraph 20; HKSAR v Li Yonghong CACC 254/2015 (23 December 2015, unreported), paragraph 23.  There was simply no comparative analysis on the appropriate quantum of enhancement amongst the decided cases.

23.Things as they are, this being a drug trafficking offence involving cocaine, we believe it is both practical and conceptually acceptable to make reference to the scale of enhancement for those who were caught bringing heroin, cocaine or ‘ice’ into Hong Kong: HKSAR v Chung Ping Kun CACC 85/2014 (2 July 2014, unreported).  We are inclined to that view because, unlike the case of Form 8 recognizance holders, particularly those who have enjoyed lengthy periods of protection and hospitality in Hong Kong, the sense and reality of abuse and betrayal that someone from outside the jurisdiction would bring by committing the egregious offence of drug trafficking is different.

24.Lest we may be misunderstood, we are not suggesting that there should be a shackling of the actual enhancement on the one hand, and the said scale of enhancement on the other, thereby making it necessary to adopt a strict arithmetic approach in working out the correct figure.  The preferred approach, we suggest, is to have regard to both the relevant level of enhancement, which is always quantity based, and the nature, scope and duration of the visitor-offender’s drug trafficking activities in Hong Kong, for so long as there is material to go on.  In assessing the latter component, however, it is important never to lose sight that it is only for one such infraction that the defendant is charged, and should be sentenced.

25.According to Chung Ping Kun, the level of enhancement for bringing cocaine into Hong Kong is “between 500 and 1,000 grammes – 1 to 2 years’ imprisonment”.  Given that the applicant had already been in Hong Kong for four months when he was arrested (he arrived in May 2016), and that he was doing D1’s bidding at least since 1 July 2016 (vide the flat’s tenancy agreement), we believe the enhancement in the applicant’s sentence should be in the region of 13 months.  This will be months lower than D1’s 18-month enhancement which, incidentally, was held to be perfectly appropriate for a Form 8 recognizance holder trafficking in 440 grammes of cocaine, in HKSAR v Dramane Mouhamed Saiti CACC 191/2016 (14 June 2018, unreported).  By adopting a disciplined approach, however, this is the result with which we have come up.  The same result we are satisfied to be correct in all the circumstances of the case.

DISPOSAL

26.We grant the applicant leave to appeal and, treating this application as the appeal proper, allow his appeal.  His sentence of 11 years and 1 month’s imprisonment is quashed.  We adopt the Judge’s starting point of 18 years and 9 months, enhance it by 13 months and then discount it by 45%, thereby putting in its place a new sentence of 10 year and 11 months’ imprisonment.

Mr John McNamara, instructed by Director of Legal Aid, assigned by Director of Legal Aid, for the Applicant

Ms Claudia Ng, SPP of Director of Justice, for the Respondent