HKSAR v. Platon Carlito Batadlan

HCCC 88/2018

[2019] HKCFI 481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 88 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant had informed the court on 27 March 2018 that he would plead guilty in this case and eventually he did plead guilty prior to coming to court on the first day of trial and he did, in fact, inform the court he would plead guilty before the trial dates were fixed for this present trial. The count to which he pleaded guilty was to trafficking in a dangerous drug together with the 1st defendant in this case and the 3rd defendant in this case, namely, 1,982 grammes of a solid containing 1,333 grammes of cocaine.

The facts to which he had pleaded guilty to was that he arrived on a ship called the Susan Maersk on 1 June 2017 and Customs officers had boarded the ship acting on information and searched the ship, including the room of the cabin of the defendants. Nothing was found. A surveillance operation was then conducted him, who is the defendant before me now, and he was seen leaving the ship on the afternoon of 2 June in a vehicle provided by the company and was driven to Panda Hotel.

At the Panda Hotel, surveillance of him continued and, in fact, from CCTV cameras and surveillance officers, it was seen that the 2nd defendant was carrying a black backpack, a black shoulder bag and a suitcase and had entered the Panda Hotel. After checking in and talking on a mobile phone subsequently, the 2nd defendant then was seen leaving the room of the hotel carrying a black backpack and black shoulder bag and went to the hotel lobby.

The 2nd defendant was seen talking on his mobile telephone and subsequently met up with the other two defendants in this case, the 1st and 3rd defendants. The 2nd defendant shook hands with the 1st defendant who was at that time carrying a small black/grey shoulder bag. The 3rd defendant was not carrying anything.

They subsequently, ie all three defendants, took a taxi to leave the Panda Hotel and the 3rd defendant sat in the front passenger seat whilst the 1st and 2nd defendants sat in the rear. The taxi stopped at the junction of Man Wui Street and Ferry Street in Yau Ma Tei and when the three defendants alighted from the taxi, the 1st defendant, in addition to carrying his small black/grey shoulder bag, was also seen carrying a black plastic bag, which had a distinctive name of Tugba on the plastic bag.

Customs officers then declared their identity and approached the defendants. Upon being intercepted, the 1st defendant immediately struggled and threw away the black plastic bag and the small black/grey shoulder bag he was carrying. And the 2nd and 3rd defendants also fled in different directions and after a short chase all were subdued and arrested. Inside the black plastic bag thrown away by the 1st defendant was found the drugs which is the subject matter of the charge. The 1st defendant was a Form 8 recognisance holder and was a Colombian national.

In the 2nd defendant’s black backpack were found two stacks of Hong Kong dollar banknotes totalling HK$105,100, each stack tied separately by two rubber bands and an empty black plastic bag, also with the name of Tugba, which is similar to the black plastic bag that the 1st defendant was carrying which contained the drugs when he left the taxi.

All three defendants were arrested for trafficking in dangerous drugs and subsequently statements under caution and video-recorded interviews were taken from all the defendants with the 2nd defendant refusing to answer any questions put to him. And the taxi driver was also interviewed and confirmed the seating arrangements inside the taxi and confirmed that it was the 1st defendant who told him where to go and that during the journey he did hear rustling sounds of plastic bags coming from the back seat.

The plastic bag containing the drugs was sent for DNA examination and including also the money and the rubber bands and the DNA results were that on a rubber band which was found wrapping a stack of money found inside the 2nd defendant’s backpack was found the 1st defendant’s DNA. Also found was the 1st defendant’s DNA obtained from the edges of the stack comprising of five $500 banknotes found inside the 2nd defendant’s backpack.

And travel movement records showed that the 2nd defendant arrived in Hong Kong on 2 June with the ship because, the ship arrived on 1 June.

The estimated market retail value of the drugs seized was HK$1,678,754.

Now, these were the facts that the 2nd defendant admitted to and subsequently the 2nd defendant did give evidence in the trial of the 1st and 3rd defendants before me and I must say that he was a very impressive witness. He gave his account without embellishments and was, in my opinion, a very reliable and credible witness. He gave an account of how he was approached when the ship docked in Colombia by a man who befriended him and, in conversation, that man discovered that he was in financial difficulties and offered him the chance of making quick money in Hong Kong by doing what he said.

The 2nd defendant said, at that time he was undergoing a very difficult financial situation as he had made himself a debtor because he had to pay for medical bills for his mother and wife. And so foolishly he agreed, and what the man in Colombia wanted him to do was merely to put a plastic bag, which is the black plastic bag found in the 2nd defendant’s knapsack upon arrest, when the ship arrived in Hong Kong at the reception gangway of the ship and that he would then be approached by a man and this man in Hong Kong would then give him a bag and he would be subsequently contacted.

So upon arrival in Hong Kong, the 2nd defendant did as he was told and, indeed, a Chinese male on the ship who had come on the ship wearing goggles and helmet, presumably, to avoid identification, then told him to meet him that evening on the other side of the ship and when he did so, he was given the bag of drugs together with a SIM card and he was told by this Chinese male to put the SIM card into his mobile telephone and he would be contacted. The 2nd defendant did as he was told and his telephone rang and he was asked where they could meet and the 2nd defendant said he would be going to the Panda Hotel as arranged by the company. And so the person on the telephone said that they would meet there and he would telephone again.

So the picture then moves to the Panda Hotel and at the Panda Hotel, the 2nd defendant was, indeed, telephoned by the 1st defendant who told him to meet him downstairs in the lobby of the Panda Hotel near the lounge bar of the hotel. The 2nd defendant then picked up the plastic bag of drugs and went down to meet the 1st defendant. They met up and then it was suggested that they take a taxi and inside the taxi, the 2nd defendant passed the drugs to the 1st defendant and the 1st defendant then gave the money of $105,000 to him as his reward. The 2nd defendant put the stacks of money into his knapsack. And the 1st defendant also gave $100 to the 2nd defendant to use for his taxi money to return to the hotel, and this was the story that emerged at the trial.

Despite attempts to question him about the participation of the 3rd defendant, the 2nd defendant, in my opinion, was very honest. He didn’t seek to curry favour by making up stories about the participation of the 3rd defendant. He spoke honestly that from what he observed of the situation that the 3rd defendant had not spoken to him about any facet or aspect of the drug trafficking. So, eventually, the jury found unanimously that the 1st defendant was guilty and acquitted the 3rd defendant.

Now, I do not place any blame on the 2nd defendant because that was all he knew. I do, however, have an opinion in this, that no doubt the 2nd defendant was used by the 1st defendant very cleverly so if there were surveillance, the 2nd defendant would be the one found holding the drugs. The transaction was made in the taxi, in the back of the taxi, where it was impossible for surveillance operations to be conducted. And this is borne out by the fact that according to Mr Tracy’s mitigation the 2nd defendant had been placed under considerable pressure from the 1st defendant to maintain his plea of not guilty. An offer was made to him that if he exonerated the 1st and 3rd defendants, he would be financially, rewarded. And Mr Tracy then, in mitigation, set out the reason why the 2nd defendant had initially pleaded not guilty.

However, subsequent to the initial plea of not guilty on 27 March about 15 days later, his solicitors, Messrs Boase, Cohen & Collins, then informed the court that he was going to plead guilty. And as Mr Tracy correctly pointed out, that was prior to the time the trial dates were set down. And, I do accept Mr Tracy’s submission that prior to the initial plea on 12 March 2018 at committal of not guilty, the 2nd defendant had had little time with Legal Aid instructed solicitors, Messrs Boase, Cohen & Collins, and so no in-depth advice had been given to him.

Now, I am also very concerned about an approach made to the 2nd defendant whilst he was in prison by a solicitor and this was brought out in the 2nd defendant’s testimony in court under oath and when he was questioned about this, he was able to provide the name of the solicitor, Mr Mohinani, and the date of the visit by consulting his own notes in which he had made whilst in prison. And it is his evidence in court that this particular person had seen him and made threats as to his safety and the safety of his family were he to testify in the trial against the other defendants.

Now, this matter was subsequently very properly and promptly reported to the police and to the Correctional Services and the Department of Justice and I am informed that the District Crime Squad is investigating the matter. And pending the final investigation report to the Department of Justice, the Department of Justice will consider what further measures to take. And no doubt if the matter goes further, the matter will be further considered in relation to any future consideration of the sentence imposed on the defendant today.

And it is unfortunate to hear of matters of this nature if it is borne out that a particular defendant should face any threats which comes from a person from the legal profession. Now, I am informed also by Mr Tracy and, in fact, he has produced a copy of a letter written by the 1st defendant to Messrs Boase, Cohen & Collins on 7 May of this year where he says in the letter that he possessed, and I quote:

“Rock solid evidence that can prove that officers from the Customs and Excise Department gave false statement on this case and that the statements were tailor-made after the fact.”

And he said in quotation, “I know that you understand what perjury means.” And the 1st defendant claimed that Hong Kong Police is conducting a criminal investigation into this matter and whether Messrs Boase & Cohen would, once they have this information, use this to advise their client.

Now, this letter proves to me the reach and gall of the 1st defendant and perhaps even desperation to write to the 2nd defendant’s solicitors with a message of this kind to try to dissuade the 2nd defendant from giving evidence against him. And this has been borne out by the verdict of the jury that the 1st defendant is completely involved in this trafficking operation. And it also bears out the complaint of the 2nd defendant that the 1st defendant did put considerable pressure on him to plead not guilty.

Now, I have no doubt at all that this defendant, the 2nd defendant, has contributed very considerable assistance to the authorities, not only in the information he gave, but also by giving evidence in court leading to the conviction of the 1st defendant. And there is also a pending investigation of a solicitor and I have no doubt that threats have been made to him and to his family and, despite all this, he had put himself forward as a witness of truth in this case.

Now, Mr Tracy has very correctly identified the starting point of sentence for drugs of this nature and mathematically, of course, the sentence, as he so meticulously worked out, would be in the region of about 23 years and 2 months. I would adopt a starting point of 23 years in the case of the 2nd defendant. I am well aware of the fact that he has a clear record in Hong Kong, but I also believe he has a clear record in the Philippines. And I also accept the fact that he has been a seaman for 27 years, he has been consistently working, a hardworking man, to provide for his family. And this is his first fall from grace.

I have no doubt that he is remorseful and the very fact of his remorse is demonstrated by his willingness in giving evidence and also in respecting the sanctity of his oath, as I said, by not telling tales or telling lies under oath. And I, therefore, having wrestled with what deduction to give in these circumstances, Mr Tracy is correct that I cannot treat him in the category of a supergrass. However, I have been mulling very seriously whether the overall discount should be between 55 to 60 per cent.

Having considered all the matters which I have already stated, apart from the matter of the solicitor, Mr Mohinani’s involvement which I am sure at the end of the day may be considered further by another superior court in any eventuality of the result of the investigation and prosecution, if any. So I am confining my consideration, really, in this case, to what has happened so far.

I am of the view that because of the facts of this case, the nature of the case, the considerable pressure on the 2nd defendant and my impression of the 2nd defendant when he was giving evidence of his absolute credibility and truthfulness, I am prepared in this case to give him 60 per cent discount on his sentence. I also take into account the fact that he may be put in protective custody by the Commissioner of Correctional Services which would add to the difficulty of his incarceration. So, overall, I consider that in this case a 60 per cent discount is appropriate.

And as has been said many times in the courts in the Commonwealth, particularly in England, when considering the sentence or the amount of discount to be given to a defendant who has assisted the authorities, the Court of Appeal has said that guidelines about percentages to be applied in cases where offenders assist the authorities would not be appropriate because it varies, the facts vary in each case.

And at paragraph 4-52 of Cross & Cheung’s Sentencing in Hong Kong, 8th Edition, it was set out that the judge has to consider factors which included the nature and extent of the voluntary participation, the nature of the assistance, was it successful in bringing to justice people who would not otherwise have been brought to justice, the degree or extent of any assistance provided and the degree of risk to which the defendant has exposed himself or his family. And, clearly, in this case, the conviction of the 1st accused was heavily reliant on the evidence which was provided in court by this defendant. And there is, indeed, clear and credible threats to the defendant and his family.

So, I would, therefore, in light of that, consider 60 per cent discount which reduces the sentence from 23 years to 9 years and 2 months.

So the defendant goes to prison for 9 years and 2 months.