HKSAR v. Delgado Valencia William Felipe

CACC 304/2019

[2020] HKCA 127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 304 OF 2019

(ON APPEAL FROM HCCC NO 113 OF 2019)

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REASONS FOR JUDGMENT

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Introduction

1.The applicant applied for leave to appeal against his sentence of 5 years’s imprisonment, following his conviction on his own plea to various drug offences.  I refused the application and indicated that I would hand down my reasons for doing so in due course, which I now do.

2.The applicant and another defendant, Arias Amaya Steven Antonio, both of whom I shall refer to by their trial designations as D2 and D1 respectively, were variously charged with drug offences that all took place on 5 January 2018.  D1 was charged with two offences of possession of a dangerous drug, namely 0.52 gramme and 0.07 gramme of cocaine narcotic respectively (Charges 1 and 2), and D2 was charged with one offence of possession of a dangerous drug, namely 1.12 grammes of cocaine narcotic (Charge 3).  They were jointly charged with one offence of possession of a dangerous drug, namely 1.82 grammes of herbal cannabis (Charge 4), and one offence of trafficking in a dangerous drug, namely 38.8 grammes of cocaine narcotic (Charge 5).[1]

3.D1 and D2 both pleaded guilty in the Magistrate’s Court to the charges laid against them and as a consequence were committed to the Court of First Instance for sentence.  On 25 September 2019, they appeared before Wong J (the judge) for plea and sentence. 

4.The judge sentenced D1 to 8 months’ imprisonment on Charge 1; 6 months’ imprisonment on Charge 2; a fine of $400 on Count 4; and 4 years and 8 months’ imprisonment on Charge 5.  After taking into account the totality principle, he ordered that the terms of imprisonment on Charges 1, 2 and 5 to run concurrently and hence sentenced D1 to a total term of 4 years and 8 months’ imprisonment.  He sentenced D2 to 8 months’ imprisonment on Charge 3; a fine of $400 on Charge 4; and 5 years’ imprisonment on Charge 5.  After taking into account the totality principle, he ordered that the terms of imprisonment on Charges 3 and 5 to run concurrently and hence sentenced D2 to a total term of 5 years’ imprisonment.[2]

The grounds of appeal against sentence

5.On 11 October 2019, D2 filed an application for leave to appeal against his sentence without specifying any grounds of appeal. In a letter to the court dated 7 January 2020, D2 made the following complaints about his sentence.  He stated that various matters were said in mitigation which were not correct.  The first matter was that D2 was aged 37, when in fact he was 27 at the time of sentence.  The second matter was that D2 started consuming drugs when he arrived in Hong Kong, but in fact he had been a drug addict for some 11 years.  The third matter was that D2 was not able to say what proportion of the drugs he intended for his own consumption and that he would not testify on the issue.  D2 claimed that he intended to consume 40% of the drugs seized, and his counsel had knowledge of this fact.  A letter from D1 was submitted in support of D2’s application.  D1 stated that, even though he was not appealing his sentence, he and D2 would have consumed in a week approximately 40% of the cocaine seized.

6.At the hearing of the application, D2 submitted a written submission in which he claimed he had previously made a mistake when he said that 40% of the drugs in Charge 5 would be consumed by him.  Rather, he meant to say he would consume about 20% of the drugs, and together with D1 they would consume about 40% of the drugs.  He also reiterated his previous complaints about his counsel and his desire to give evidence on the issue of self-consumption.

The admitted facts

7.The facts as outlined to the judge and agreed to by D2 can be summarised as follows.[3] In the evening of 5 January 2018, police officers, who were on duty outside the premises, known as Room C, 15^th Floor, Wilmer Building, 19 Wilmer Street, Hong Kong, intercepted D1 and D2 as they were entering the premises.  Both were found to be in possession of keys to the premises.  The police officers took D1 and D2 inside the premises and searched them. They found on D1, a packet of cocaine (Charge 1) and $4,840 cash, and on D2 two packets of cocaine (Charge 3) and $11,220 cash.  The police officers armed with a search warrant, conducted a search of the premises.  In the living room, inside a drawer, they found a plastic bag containing one packet of cocaine (Charge 2).  In Room 1, inside a cabinet, they found $4,500 cash.  In another room, Room 2, they found on a chair 3 packets of cannabis (Charge 4), and in a locked drawer of a wardrobe 70 packets of cocaine (Charge 5).  The drawer was unlocked by a key seized from D2.  Also, inside the locked drawer was an electronic scale and $100,000 cash.  In another drawer of the wardrobe was found $9,510 cash, two electronic scales, 139 transparent resealable plastic bags, and some other items. 

8.It was an agreed fact that on 7 January 2018 in a video-recorded interview, D2 admitted that he was a drug user but remained silent to other questions asked of him.  It was also an agreed fact that D1 and D2 admitted that they were unlawfully trafficking in the dangerous drugs seized from the locked drawer of the wardrobe in the premises at the time of the offences. 

9.The retail value of the drugs seized was between $54,023 and $64,267.

D2’s mitigation

10.Mr David Boyton, on behalf of D2, submitted a written submission in mitigation.[4] It was mentioned that D2 was 37 years of age but this was clearly a typographical error as the antecedent statement on which he relied stated that D2 was 27 years of age.  There is nothing of significance in this point. 

11.The judge also noted the further mitigation submitted by Mr Boyton on behalf of D2, which was as follows:

“Learned counsel for D2, Mr Boyton, also stressed that D2 had pleaded guilty at the earliest opportunity, and submitted a discount should be given to the trafficking charge for the reason of self-consumption as evidenced by the defendant’s urine test at the reception centre. D2 started consumption of drug only when he had arrived in Hong Kong, labouring under stress, as he came to know that his mother was suffering from serious illness in her pancreas and stomach, but was not able to return home since his father had told him of some serious threat of safety there. This threat was indeed the basis on which he laid his non-refoulement claims.

Mr Boyton also inform the court that D2 had participated in the campaign of Father Wotherspoon to warn people against participating in drug trafficking. Family members of D2 have participated as well. The father wrote a letter to show what had been done and is present in court to show support. D2 also wrote a letter in which he outlined his background, what happened to his family after he had come to Hong Kong, and how he came to consume drugs. He also expressed remorse and his wish to return home to shoulder his responsibility as a son and father.”[5]

The reasons for sentence

12.The judge in his reasons for sentence addressed the issue of self-consumption, which had been advanced by both defendants.  He noted that the urine test of each of the defendants was positive for drugs and that D2 had admitted at the time of his arrest that he was a drug user.  He further noted that both defendants were unable to say what proportion of drugs they intended to use for self-consumption and that they were not going to testify on the issue.  He explained he was prepared to accept that both defendants had been drug users, and that part of the drugs seized would have been retained for their own consumption.  However, he recorded that he had indicated to counsel he was not able to accept that a substantial proportion of the drugs in Charge 5 would have been for self-consumption. He went on to explain:

“In the case of D1, the charges for which he had been convicted show that there were drugs for his own consumption already. Even if he was to consume part of the drugs in relation to Charge 5, I do not accept the proportion for such purpose would have been substantial. In addition, I have to take into account the latent risk which in my assessment was very high.

Similar consideration applies to D2. I am persuaded to accept that part of the drug would have been intended for the own consumption of D2 but the quantity would have been minimal. It should also be noted that D2 was in possession of the drugs in relation to Charges 3 and 4 which could be used to satisfy his needs.”[6]

13.In accordance with the sentencing guidelines, the judge adopted a starting point of 7 years’ imprisonment for 38.8 grammes of cocaine narcotic.[7] It is noted that a more accurate arithmetic calculation is 7 years and 2 months’ imprisonment.  He enhanced the starting point by 9 months to 7 years and 9 months’ imprisonment for the fact that D2 was a Form 8 recognizance holder at the time of the offence.[8]  He discounted the notional sentence by 2 months for D2’s participation in Father John Wotherspoon’s anti-drug campaign to 7 years and 7 months’ imprisonment. [9] 

14.As already noted, the judge did not discount the sentence for self-consumption for the reasons that he gave.  He reduced the sentence by one third for D2’s guilty plea, to 5 years’ imprisonment.  The other sentence of imprisonment of 8 months imposed on D2 for Charge 3 was ordered to be served concurrently with the sentence of imprisonment on Charge 5.  The end result was that D2 was sentenced to 5 years’ imprisonment.

Discussion

15.The thrust of D2’s complaint against his sentence concerned what was submitted to the judge by his counsel on the issue of self-consumption.[10] This was all done in open court in the presence of D2.  It was also carefully documented by a written submission from counsel to the judge.  It is not without significance that D2 submitted a letter to the judge dated 25 September 2019.  In the letter, amongst other things, he said that when he came to Hong Kong in 2017 he was told by his father to remain here because of threats at home, although those threats had been resolved and he was now safe.  He also said that during his time in Hong Kong he came under the influence of some “bad acquaintances” and started drinking and taking drugs.  He explained he initially consumed drugs to relieve his depression because he was unable to return home, but the more drugs he consumed, the more depressed he became.  This statement was consistent with what had been submitted by counsel that he started consuming drugs when he arrived in Hong Kong.

16.In light of the nature of the issues and the circumstances of the proceedings, there is no reason to doubt what was submitted by counsel on D2’s behalf.

17.The judge, in any event, accepted that D2 was a drug user, but rejected the contention that a significant proportion of the drugs, which D2 admitted he was trafficking, was intended for his own consumption.

18.As pointed out by Ms Jennifer Fok, for the respondent, there was no evidence to support D2’s contention that 40% of the drugs in Charge 5 were for consumption by D1 and D2.

19.It was quite apparent the judge had in mind that the drugs in Charge 5 were individually packed into 70 plastic bags, which is a form commonly used by traffickers for the sale of drugs, and that in the premises were also found equipment and items for the packaging of drugs and over $100,000 in cash.  In addition, the drugs found in the premises had a retail value of about $60,000.  It was submitted by Ms Fok, that D2 was a non-refoulement claimant who was not allowed to work in Hong Kong, and hence the funds in question would have been the proceeds of drug trafficking activities.  I was informed at the hearing that D2 came to Hong Kong in May 2017, and in August 2017 he made a non-refoulement claim.  The drug offences, to which D2 admitted, took place in January 2018, which meant that in a relatively short period of time D2 had accumulated a large quantity of cash, most likely from his involvement in the drug trade.

20.Ms Fok also made the point that the discount of 2 months for D2’s participation in Father Wotherspoon’s anti-drug campaign was over generous, bearing in mind that D2 ostensibly came to Hong Kong to seek asylum, and yet by his conducted he was instead seriously involved in the drug trade. He was not the typical person to whom Father Wotherspoon’s anti-drug campaign is directed, namely persons who because of their desperate and dire circumstances, are preyed upon by overseas drug syndicates and encouraged to act as couriers to bring drugs to Hong Kong.  The participation of such persons in the anti-drug campaign is to expose the activities of the overseas drug syndicates and prevent others from following the same course.

21.A letter was submitted to the judge by Father Wotherspoon dated 15 September 2019, in which he said that D2 had supported his anti-drug campaign by warning people in Columbia about the danger of drug trafficking to and within Hong Kong.  It seems to me that the discount available to a defendant for participation in Father Wotherspoon’s anti-drug campaign should be both genuine and deserving.  I have grave doubts whether either of these requirements had been satisfied in the circumstances of D2’s case.  See HKSAR v Kilima Abubakar Abbas, at [65] – [67] and [87] – [92].

22.The issue of self-consumption was fairly and properly addressed by the judge.  D2 had an opportunity to give evidence in support of his claim that a significant proportion of the drugs in Charge 5 were for his own consumption, but he chose not to do so.  It is difficult to see what, if anything, he could have said in support of his claim, other than he was a drug user.  In any event, the judge accepted that he was. However, there was also evidence that he was heavily involved in the drug trade.  After considering all the facts and circumstances before him and the relevant law, the judge concluded that D2 was not entitled to a discount to his sentence on the basis that he was not satisfied that a significant proportion of the drugs were for his own consumption.  The judge properly exercised his sentencing discretion not to grant any discount to D2 for self-consumption.

23.I do not find any merit whatsoever in the matters complained about by D2 in relation to the sentence passed on him. 

Conclusion

24.I therefore refused D2 leave to appeal against his sentence.

25.I reminded D2 of his right to renew his application for leave to the Court of Appeal, but also warned him 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.

Miss Jennifer Fok, SPP of the Department of Justice, for the respondent

The applicant appeared in person

[1] Appeal Bundle, 1 – 3.

[2] Appeal Bundle, 12 – 16.

[3] Appeal Bundle, 5 – 8.

[4] Appeal Bundle, 9 – 11.

[5] Appeal Bundle, 14C – K.

[6] Appeal Bundle, 15C – H.

[7] R v Lau Tak Ming [1990] 2 HKLR 370; and AG v Pedro Nel Rojas [1994] 2 HKCLR 69.

[8] HKSAR v Ali Saif, CACC 309/207, unrep., 14 June 2018.

[9] HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.

[10] HKSAR v Wong Suet Hau [2002] 1 HKLRD 69; HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572; and HKSAR v Choi Chun Wo [2018] 5 HKLRD 717.