HKSAR v. Faustino Hidalgo Cesario

CACC 206/2019

[2020] HKCA 132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 206 OF 2019

(ON APPEAL FROM HCCC NO 211 OF 2017)

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J U D G M E N T

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Introduction

1.On 26 June 2017, the applicant pleaded guilty before a magistrate to the offence of trafficking in a dangerous drug, namely 1.28 kilogrammes of a liquid, containing 901 grammes of cocaine, and was committed to the Court of First Instance for sentence.  On 29 September 2017, D’Alamada Remedios J (the judge) sentenced the applicant to 15 years and 6 months’ imprisonment.

2.At the time of his arrest, the applicant had in his possession the total sum of US$1,200 in two lots of US$600.  An application was made by the prosecution to have the total sum forfeited by order of the court. After discussion between the parties, the prosecution amended its application for forfeiture of only half of this sum. There was no objection from the defence.  The judge then made an order in terms of the amended exhibit list. She went on to make it clear “that item 12A is US$600, to be forfeited and 12B, US$600 to be returned to the defendant.”

3.On 11 July 2019, the applicant filed an extension of time in which to give notice of an application for leave to appeal against sentence.  He also sought legal aid.  In his affirmation, accompanying the leave application, the applicant explains that his application is out of time because he had not been assigned an interpreter within the 28-day appeal period and letters written to the Legal Aid Department were either returned to him or unanswered.  The applicant states the basis for seeking leave against his sentence is that he did not have a legal representative when he was sentenced, and the judge did not take into account the declaration he made to Customs officers when he was arrested, which had not been translated when he was taken to hospital.

4.On 30 September 2019, the applicant submitted a letter to the judge who dealt with his sentence in respect of the application for forfeiture of the exhibits following his conviction and sentence.  He states that the amount of US$1,200 cash that was seized from him was not the proceeds of crime.  He requests that the money be returned to him because it would assist his family back home.

5.On 27 December 2019, Father John Wotherspoon submitted a letter to the court in support of the applicant’s leave application.  He explains on behalf of the applicant that non-English speaking prison inmates have difficulty communicating with others, and understanding the legal processes in Hong Kong.  With respect, this does not satisfactorily answer the near two-year delay in making the application for leave to appeal against sentence.  In seeking an extension of time for leave to appeal, the longer the delay, the more onerous is the obligation on the applicant in justifying the application.  See R v Wong Kai Kong [1990] 1 HKC 279, at 281. 

6.Father Wotherspoon also explains that he did not submit a letter of support to the court when the applicant was sentenced, even though the applicant had been a supporter of his anti-drug campaign, having posted a letter on his website in October 2017.  It seems the applicant’s contribution to Father Wotherspoon’s anti-drug campaign took place after he was sentenced in October 2017.  Clearly, it was not the subject of mitigation when the applicant was sentenced, and in light of those circumstances it is a matter that can be taken up with the Executive.  See HKSAR v Yeung Kwai Kuen [2002] 3 HKLRD 91.

7.It is to be noted that the Director of Legal Aid refused legal assistance to the applicant on 12 August 2019.  He was also refused legal assistance from the Hong Kong Bar Association Bar Free Legal Service Scheme on 29 November 2019.  It was explained to the applicant that despite his complaint that he was not legally represented at the time of sentencing that was not correct.  He was represented by counsel who mitigated on his behalf.  It was further explained that his sentence was very reasonable in all the circumstances.

The sentence

8.The applicant had arrived in Hong Kong on 19 September 2016, on an international flight from Sao Paulo, Brazil, via Abu Dhabi, United Arab Emirates.  He was intercepted by Customs officers and taken to Queen Elizabeth Hospital were over a period of 3 days he discharged from his body cavity 36 pellets which contained the drugs in question.  The estimated street value of the drugs seized was $1,422,080.

9.For the total quantity of 901 grammes of cocaine narcotic, the judge correctly adopted a starting point of 21 years and 6 months’ imprisonment.  She correctly enhanced the sentence for the international element by 21 months.  She reduced the notional starting point of 23 years and 3 months’ imprisonment by one third for the applicant’s guilty plea to 15 years and 6 months’ imprisonment.[1]

10.There is no basis for complaint by the applicant for the sentence imposed on him by the judge.  She correctly followed and applied the sentencing guidelines based on the information and material before her.

The leave application out of time

11.Ms Anthea Kwok, for the respondent, has set out the circumstances as to what has taken place in relation to the applicant’s case.

12.The applicant complains that the judge failed to take into account his declaration that he made to Customs officers when he was arrested and that the interpreter failed to receive and transcribe his declaration on 22 September 2016 when he first went to the Queen Elizabeth Hospital.

13.Ms Kwok notes that the arresting officer in his statement, mentioned that when the applicant was arrested in the afternoon on 19 September 2016, he said something in a foreign language that he did not understand.  The next day, with the assistance of a Spanish interpreter, a post-recorded statement was taken from the applicant in the Queen Elizabeth Hospital.  When he was interviewed under caution, the applicant provided background information about himself but refused to answer questions about the case. 

14.Ms Kwok submits that the applicant failed to make any declaration at the material time.  She informs me that the applicant wrote a letter to the Chief Executive on 25 October 2018, listing a series of complaints.  He claimed that when he was arrested at the airport he indicated his willingness to assist Customs officers but no Spanish interpreter was arranged.  When an interpreter was provided on 22 September 2016, the interpreter did not listen to what he had indicated to the Customs officers when he was arrested at the airport.  Nor did counsel assigned to him want to listen to what had happened at the airport, and therefore relevant information was not provided to the judge.  He also claimed that on the day of sentencing, no interpreter was arranged for him.  He said he requested an interpreter who was a permanent resident in Hong Kong because he was fearful that the lives of his family members in Peru would be at risk due to the sensitive information he wanted to disclose.

15.As a result of the applicant’s letter, Customs officers visited him on 11 January 2019 and with the assistance of an interpreter took a non-prejudicial statement from him.  It records that he refused to participate in the interview unless a legal representative was present.

16.Ms Kwok submits it is unclear what declaration the applicant was referring to in his application, and in view of the circumstances of his case, there is no basis to grant him leave to appeal against his sentence.  It was confirmed with the applicant that the declaration he was referring to was his admission of guilt at the airport and later at the hospital.  He received the full one third discount for his guilty plea, which subsumes any previous admission of guilt or remorse.  See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.  There is no substance to this point.

17.As noted in HKSAR v Oh Chun Kit [2013] 1 HKLRD 437, in determining whether to grant an extension of time for leave to appeal, an appellate court will take into account:

(1)     the length of the delay;

(2)     whether the applicant has a reasonable explanation for the delay; and

(3)     whether sufficient grounds of appeal are shown.

18.I agree with the submissions of Ms Kwok.  No satisfactory explanation has been given by the applicant for the inordinate delay in filing the leave application, nor has the applicant advanced any reasonable argument that, as a consequence of refusing his application for an extension of time, a substantial and plainly arguable ground of appeal would be shut out.  See R v Wong Kai Kong [1990] 1 HKC 279, at 280 – 281.

19.It follows from what I have said that the applicant’s application for leave to appeal against his sentence is refused.

The forfeiture order

20.There is the matter of the return of the US$600 of the US$1,200 that was seized from the applicant at the time of his arrest. Ms Kwok has informed me that in accordance with the order of the judge Customs officers on numerous occasions attended upon the applicant to give him the sum of US$600.  The applicant refused to accept the money and sign a receipt. He was informed that by doing so, the money would be disposed of in accordance with departmental procedures.  As a result of his refusal to accept the money, it was transferred to the Treasury for confiscation on 4 June 2019. 

21.I note that in HKSAR v Valencia [2018] 3 HKC 308, a two member division of this Court (McWalters JA and Barnes J) questioned whether the Court of Appeal had jurisdiction to hear argument in relation to a forfeiture order in an appeal against sentence.  It was noted by the Court that it was arguable that jurisdiction may arise if the defendant’s right of appeal against sentence is under section 83H of the Criminal Procedure Ordinance, Cap 221 (as oppose to section 83G).  I also note in HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, another two member division of this Court (Lunn VP and Macrae JA (as he then was)) was of the view that a forfeiture order was part of the sentence.  They referred to the meaning of sentence under section 80(1) of the Criminal Procedure Ordinance, where it is stated that “‘sentence’, in relation to an offence, includes any order made by the court in dealing with an offender including a hospital order.”

22.The present application was adjourned in order for Ms Kwok to explain on what basis the US$600 (Exhibit 12B) was deposited into the Treasury.

23.Ms Kwok explains the Customs officers had visited the applicant on four occasions in order to return Exhibit 12B to him (on 9 January, 26 February, 10 April and 16 May 2018).  It appears he refused to accept the return of Exhibit 12B because he wanted the whole sum of US$1,200 returned to him.

24.It should be noted that in mitigation, it was submitted that the applicant acted as a drug courier because he needed the “money” and would not have done it unless he was in “desperate need.”[2]  He had lost money in his business and as a consequence borrowed money.  He was offered a reward to transport the drugs to Hong Kong and was expecting several thousand US dollars.[3] 

25.There is no reasonable argument available to the applicant to appeal the forfeiture order in relation to Exhibit 12A.  Indeed, he is very fortunate that an order was made for the return of Exhibit 12B, bearing in mind the circumstances of his case.  The order was made by consent of the parties and there is no basis to disturb the forfeiture order in relation to Exhibit 12A.

26.The fact remains that there is an order of the court that Exhibit 12B be returned to the applicant.  Even though he has been uncooperative, the order is still in force.  However, the monies in question have now been transferred into the Treasury. 

27.The power of a court to order the forfeiture of any money used in the commission of or in connection with a drug offence is provided by section 56(1) of the Dangerous Drugs Ordinance, Cap 134.  This was the power the judge exercised when she ordered the forfeiture of the US$600 (Exhibit 12A).

28.Ms Kwok argues that the court order in relation to Exhibit 12B was made under section 102 of the Criminal Procedure Ordinance, Cap 221, which provides that a court may order the disposal of property connected with an offence.  Ms Kwok submits that the judge’s order was specifically made under section 102(2)(a)(i) which provides:

“(2) Of its own motion or upon application, a court may—

(a) in respect of property to which subsection (1)(a) applies—

(i)    make an order for the delivery of any such property to the person who appears to the court to be entitled thereto.”

29.Ms Kwok argues that Customs delivered Exhibit 12B to the applicant but he refused to accept it and therefore Customs were entitled to treat it as abandoned property.

30.The prosecution conceded that Exhibit 12B should be returned to the applicant and the judge made an order to that effect.  The order is still operative.  It leaves open to the applicant to seek redress either by way of a civil claim or judicial review for recovery of the monies, Exhibit 12B.

The loss of time warning

31.It follows from what I have said that the applicant’s application out of time is refused, and I find no merit in the substance of his leave application.

32.The applicant is reminded of his right to renew his application for leave out of time to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Anthea Kwok, SPP of the Department of Justice, for the respondent

The applicant appeared in person

[1] The judge applied the sentencing guidelines as laid out in HKSAR v Abdallah [2009] 2 HKLRD 437.

[2] Appeal Bundle, 8L – M.

[3] Appeal Bundle, 9A – L.