HKSAR v. Quintero Bernal Diego-jhovanny and Another

HCCC 301/2019

[2021] HKCFI 968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 301 OF 2019

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BETWEEN

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REASONS FOR SENTENCE

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1.The Defendants, who are Columbian nationals, have pleaded guilty to trafficking in dangerous drugs contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 by importing them into Hong Kong from Columbia via Sao Paolo and Dubai on 30 June 2018.

THE SUMMARY OF FACTS

2.The defendants have entered their pleas to Counts 2 (D1) and 3 (D2), on the basis that they imported the drugs into Hong Kong from Columbia.  The prosecution have accepted those pleas on that basis and accordingly, the Court will enter a verdict of not guilty on Count 1 against both D1 and D2.  The defendants are formally found guilty on Count 2 as against D1 and upon Count 3 as against D2 upon their own plea.  The estimated total street value of the drugs was HK$2,292,095.

THE INDICTMENT

3.The indictment originally contained one count of trafficking in dangerous drugs as against both D1 and D2 on a joint enterprise basis.  It was later amended.  I will deal with how that came about because it bears some relation to sentencing.

4.Unfortunately, this matter could not be dealt with at a CMH through no fault of the parties and Mr Percy, on behalf of D1, only made an application on the first day of trial under s23(1) of the Criminal Procedure Ordinance, Cap 221, to have individual counts added to the indictment to provide for the drugs carried individually by each defendant.  At the beginning of the trial, Mr Percy submitted the indictment was defective.  He relied in support of that application on the decision of the Court of Appeal in HKSAR v Gurung Laxman CACC 385/2015, which was an appeal from the District Court.  In Gurung Laxman, the defendant had been charged with a single count of trafficking.  The Court of Appeal found that the appellant had intended to consume the larger part of the dangerous drugs recovered and had intended to traffic in a substantially smaller quantity.  In such circumstances, where there were quantifiable amounts which could be identified for both trafficking and for self-consumption, then the Court of Appeal stated that the appropriate course of action was to have one charge for the amount to be trafficked and a second charge covering the amount which was possessed in order to consume it.  However, where the amount to be consumed was contested, then the appropriate course was to identify the whole amount to be trafficked and an alternative charge should be added as to the amount that might have been possessed for self-consumption.  That decision did not sit on all fours with the case at hand nor was it ever intended to apply in a case such as this.  In this case, the defendants ingested a significant amount of cocaine on the same day in the same hotel room in Bogota and then travelled together to Hong Kong where they intended to discharge that cocaine and hand it over to a third party.  The prosecution is premised on the basis of joint enterprise albeit that D1 and D2 carried separate amounts of drugs.  In Gurung Laxman, the argument was about self-consumption.  He was in possession of all of the drugs, the question before the court was what he was going to do with them.  At paragraph 54 of Gurung Laxman, McWalters JA was at pains to point out:

“We should emphasise, however, that this alternative charge procedure is only appropriate for specific quantifiable amounts of drugs which the court accepts are for the defendant’s self-consumption.”

5.McWalters JA went on to explain that, in the event that such a course of action is taken, it is for the prosecution to either accept a plea to the alternative count of simple possession or, if there remains an issue as to whether the whole of the drugs were trafficked, to proceed to trial for the jury to decide[1]. In that case, the Court of Appeal acknowledged that where such an issue was foreseen to arise in trial or on plea, it had become a habit to add an alternative count of possession as to the quantifiable amount,[2] but it certainly is not authority for the fact that the indictment would have been defective in those circumstances.  Nor does it preclude the prosecution from seeking such an amendment at some later stage of the trial where such a defence becomes apparent.  What it does do however, and what Mr Percy really relies upon, is to affirm the existing understanding of the breadth of circumstances the Court may take into consideration when dealing with the issue of amendment.

6.The indictment in its original form was clearly not bad on its face.  However, it became clear from submissions of counsel on behalf of D2, that it may be possible for D2 to advance a case where she was not participating in a joint enterprise as to the whole of the amount imported into Hong Kong.  This was because Mr Whitehouse submitted that she was brought into the scheme at a late stage and was not present either at the time of the threats or when D1 ingested the cocaine which he alone was carrying. Other than mere presence, according to Mr Whitehouse, there appeared to be no other evidence against her on a joint enterprise basis.  After some consideration, Ms Mohamed, on behalf of the prosecution, acceded to the request and the matter was adjourned for the indictment to be amended.  Leave was granted for the amendment to add alternative counts at Count 2 and Count 3 and the defendants were arraigned on day 2 of trial.  That amendment and the pleas tendered were clearly on the basis that it was for the prosecution to decide if they would accept a plea of guilty to the alternative counts and would not necessarily preclude them from rejecting such plea and proceeding upon Count 1.  That was the basis upon which the Court granted leave.  In so doing, there was no prejudice to any party.  It was not granted on the basis that the prosecution was bound to accept a plea to Count 2 or Count 3 if tendered as Mr Percy attempted to suggest at a later stage of the trial.

7.It was at the time of arraignment upon the amended indictment that it became obvious to the Court that all was not well with D2.  She ultimately entered a plea of not guilty to Counts 1 and 3 but only after she had initially entered a plea of guilty to the latter.  It was only after intervention from Mr Whitehouse that the indictment was put again for her to enter a not guilty plea to Count 3.  This gave the Court some concern and it became apparent that it was necessary to understand the history of these proceedings.

CHRONOLOGY OF PROCEEDINGS

8.From June 2018 to May 2019 both defendants were represented by the Duty Lawyer Service.  In November 2018, D1 of his own volition wrote to the Security Bureau with an offer of assistance. This was not progressed either by the Security Bureau or by the Duty Lawyer Service. On 6 May 2019, Mr Whitehouse first appeared for D2.  Mr Marray, who was D1’s original legal aid counsel, did not appear on behalf of D1 until 29 July 2019.  The defendants were committed to the High Court for trial on 9 September 2019.  Mr Hotten, who now appears on behalf of D2, informed the Court that the defence had written to the DoJ on 24 April 2019 to offer a plea to the importation of 342 grammes of cocaine.  This was pre-committal.  The prosecution had replied that they were not prepared to consider that offer in the light of there being no similar offer by D1 and the matter went no further.  I do not take that to mean that the prosecution would necessarily have accepted a plea from both defendants at that stage to individual amounts, just that a plea would not be considered at all in those circumstances.  At that stage, D2 was represented by Mr Whitehouse and D1 was represented by Mr Marray.  Unfortunately, Mr Marray was not made aware of the offer by D2 and was therefore not in a position to seek instructions from his client as to whether a plea bargain was acceptable.  If he had been made aware and had asked his client about his willingness to plead guilty, it is possible that D1 would have re-iterated his willingness to assist but that opportunity did not arise.

9.The defendants were committed to this court on 9 September 2019.  They entered pleas of not guilty upon advice.  From the submissions before me on the last occasion, I understand this was because D1 thought the defence of duress was available to him and D2 was advised that there were negotiations in place for a plea bargain and should enter a plea of not guilty until those negotiations were resolved.  Owing to the pandemic, and other unavoidable diary difficulties, this matter did not come before the Court until the first day of trial on 10 March 2021, by which stage Mr Percy, and not Mr Marray, held the brief on behalf of D1. Mr Whitehouse was still doggedly pursuing his original request for a plea to what is now Count 3 to be considered by the prosecution and only at that stage does Mr Percy become aware of the offer.

DEFENDANTS’ BACKGROUND

10.D1 was born on 28 September 1981 and 39 years of age.  He was born and raised in Columbia in the town of Pereira.  He was originally employed as a fitness instructor on a salary of between USD500-600 per month and was in stable employment.  Shortly before this incident he started up his own importation business, seeking to import gym equipment into Columbia.  He did not have a sufficient credit record to obtain a loan from the bank for this business and so he sought a private loan.  The Court was told that this is common practice in Columbia.  I am told that D1 attended what appeared to be a legitimate business to obtain this loan and a man we now call Mauricio Arango Ospina was the person he dealt with.  The loan was for 30 million Columbian Pesos (USD 10,000).  A large amount which was to be paid back on a monthly basis by USD1,000 capital and USD250 interest.  D1 used the loan monies to purchase equipment which was sold on but unfortunately the purchaser was to pay for the goods on a monthly basis as well.  Things went well for a few months but then the purchaser disappeared and D1 did not have the means to repay Ospina.  He asked for time.  Ospina allowed him to repay the debt on an interest only basis for a short while before he called in the whole debt which D1 could never repay.  At that point he was threatened.  Ospina had the details of his whole family including his young son and elderly parents.  A pistol was produced and he was told that not only would he be killed but also his relatives.  In order to repay the debt he would be required to transport drugs into Hong Kong.  Until this offending D1 was a man of good character.  He has a son, who is now 10 years of age, with D2 but they are no longer a couple and although not living together at the time of the offending, they were attempting to make a go of the business and D2 had been present when D1 picked up the loan.  The result is however that neither parent is currently looking after their child.  Mr Percy submits that D1 only trafficked these drugs because he feared for his family and especially his son.  He felt he had no choice.

11.D2 was born on 1 February 1992 and is a woman of 29 years of age, some 10 years younger than D1 and very young at the time she gave birth to their son.  She left school at a young age and has never been in full employment although she has worked.  Although she had been in a relationship with D1 for some period of time, they were not a couple at the time of offending but she clearly felt a responsibility towards him, no doubt because of their connection with their son.  She was employed as saleswoman at the time of her arrest.  She too is a person of heretofore good character.  Mr Hotten submits that it was Ospina who had insisted that D2 should also transport drugs.  By that stage both D1 and D2 had become aware of the fact that Ospina was not just a simple drug dealer but the head of a criminal gang.  He was extremely dangerous and his threats were to be taken seriously.  Both their families were at risk especially their seven-year-old son.  Indeed, D2 thought that they were being followed whenever she took her son to school and succumbed only because she felt she had no choice.  In her own words, the position had become impossible for her and she felt that she had to protect her family in the face of what she now knew was a real threat.  It was heart-breaking he said for her to leave her young son knowing the risk she was about to take.

Background to offending

12.The Court has been told that D1 and D2 met up with Ospina and two others at a hotel the day before they travelled.  They were separated by a curtain in a hotel room and were pressurised to swallow the drugs.  The description of what occurred in that hotel room is quite chilling.  D2 took a whole day to force down the 39 pellets she carried and was making her vomit.  I am told throughout the day she was crying and extremely distressed, a sound no doubt that D1 could hear.  These were not willing couriers.  When they asked what would happen if they refused, a gun was produced and the threats were reiterated.  Even when she said she could swallow no more, pressure was placed upon D1 to do so and only when she was at risk of bringing them all back up did the drug dealers allow her to stop.

13.It was initially intended that the issue of duress was to be run at trial.  That is certainly how I read the Case Management Questionnaire (“CMQ”) and how Ms Mohamed intended to proceed.  As a result of what I have now been told, I can understand why that might have been considered but I was certainly not aware of the full circumstances at trial even though the defendants would still have had some difficulty with the criminal defence elements of duress.  Despite what I have now been told about the background to this matter, D2 never intended to run duress, she wanted to plead guilty. Mr Whitehouse was not indicating his actual instructions when he stated within the CMQ that he sought to run duress on her behalf.  It may be that this was a holding position if he was not successful on her behalf with the offer of plea or, that he intended in any trial to seek to keep his powder dry by supporting D1’s defence of duress if at all possible.  In any event it was not done upon instructions and it was misleading to the Court, which assumed that the defence had fully considered the necessary legal and evidential implications of running this defence.  Certainly what the Court has now been told makes the whole issue even more confusing.  I have not been assisted with how the situation came about as Mr Whitehouse is no longer with us, but I had been provided with a general outline of the factual basis for the defence of duress by D1 at trial, which was helpful.

14.Mr Percy expanded on that outline in mitigation and I have referred to it above.  Both counsel on behalf of their clients submit that it was under what they deemed to be a continuing and valid threat to themselves and their loved ones and under an enormous amount of pressure and distress that they carried out this crime.

15.After some considerable discussion of the law of duress, Mr Percy on behalf of D1, asked for an opportunity to seek further instructions from his client.  D1 decided to offer a plea of guilty to Count 2 and in the event of the existing offer from D2 on Count 3, the prosecution decided not to proceed on Count 1 for reasons peculiar to the facts of this case and certainly not as a matter of policy.

16.It is against the whole of this background that the defendants fall to be sentenced.

SENTENCE

Guideline cases for the international importation of cocaine

17.The guideline case for trafficking in larger quantities of cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437 (“Abdallah”). As D1 pleaded guilty to importing 740 grammes of cocaine, the bracket of sentencing he falls within is that for 600 to 1200 grammes of cocaine for which the applicable sentencing band is between 20 and 23 years.  The guideline case for trafficking in quantities less than 600 grammes of cocaine is HKSAR v Lau Tak Ming [1990] HKLR 370 (“Lau Tak Ming”). D2 imported 342 grammes of cocaine and therefore the starting point for sentence falls within the 200 to 400 grammes band, which has a sentencing range of 12 to 15 years.

The role played by each defendant

18.The guideline cases are broadly based upon the appropriate sentence for couriers and storekeepers[3], although of course there can be many subcategories of culpability and blameworthiness under those heads. Both defendants submit that they were carrying these drugs for the first time from Bogota to Hong Kong where they were to handover the drugs to a third party.  Their roles were restricted to being the physical means of importing the drugs into Hong Kong and no wider.  They were couriers simpliciter.  Without more therefore the starting point for sentence after trial for D1 would be 20 years 9 months under Abdallah.  For D2, who falls to be considered under Lau Tak Ming, the starting point after trial would be 14 years 2 months’ imprisonment.  D1 was in an impossible situation given the very real threats made to him and the stature of Ospina and his network.  He did the bare minimum to comply and sought to protect D2 but to no avail.  He was literally a vessel for the drugs.  I am going to reduce his starting point by 6 months making his starting point 20 years 3 months.  It appears that D2 played a far lesser role and was clearly unwilling.  She did nothing to bring it about.  As a consequence, her role is marginally less culpable than that of D1 and it should be marked at this stage.  Therefore, I intend to reduce the mathematical calculation for 342g under Lau Tak Ming of 14 years 2 months’ imprisonment and exercise my discretion to reduce that figure by nine months to 13 years 5 months’ imprisonment as a starting point to reflect her role.

19.The issue as to why these defendants carried out this crime could be dealt with at this stage, when considering where in the band they should fall to be considered or, it could be considered at a later stage when dealing with mitigation by reducing the sentence by a defined amount or when considering the appropriate percentage discount.  Given the actus reus and mens rea of the offence was plain on the face of the papers, I believe the Court is better placed to consider the issue of motivation (or compulsion as has been suggested) at the end of this process along with other issues such as assistance, the chronology of proceedings and the advice given, which led to the defendants having a trial they did not wish, in respect of D2 and by default, in respect of D1.  This is in line with the Court of Appeal in Herry Jane Yusuph supra, where Macrae VP stated:

“78. We do not accept that certain forms of mitigation should, therefore, be taken into consideration before the discount for plea is considered. In our judgment, the proper approach to all mitigating circumstances, and the approach least likely to lead to confusion, disparity and the distortion of the sentence, is to consider them at the same time when assessing the overall discount from the notional sentence after trial.”

International element

20.Abdallah states that an aggravating feature of drug trafficking is present when defendants import drugs into Hong Kong from abroad.  In such a case there will be an uplift from the starting point to account for this international element as a measure of deterrence.  The calculation for that uplift is based largely upon the weight of the drugs imported although there will be some room for the Court’s discretion looking at the offending as a whole and the likely sentence. D1 imported 740 grammes of cocaine into Hong Kong.  In light of recent authorities and HKSAR v Chung Ping Kun CACC 85/2014, I consider an appropriate uplift in the circumstances of this case to be one of 9 months’ imprisonment.  D2 imported 342 grammes of cocaine and therefore I consider the appropriate uplift for this aggravating feature to be one of six months’ imprisonment.

21.Prior to considering other matters of mitigation and any discount, the proposed sentence after trial would be 21 years’ imprisonment for D1 and 13 years 11 months’ imprisonment for D2.

MITIGATION

22.In Abdallah the Court emphasised that:

“As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally – dictates that meaningful mitigation, apart from the plea of guilty, is rarely available.”

23.Mr Percy, on behalf of D1, urges the court to consider the background to this offending and he provided considerable documentary support to show both the nature of Ospina and his role in Columbia as well as the positive good character of the defendant. He prays in aid the consistent story of D1 which is clearly supported by the documents before me.

24.Mr Hotten on behalf of D2, wishes the court to take into consideration all of the circumstances in which D2 found herself and her family under threat and as a result of immediate physical threats of violence was compelled to carry the drugs in the manner in which she did, which would have placed her at significant risk if the drug pellets had ruptured.  He submits the Court can accept the defendant’s version of events which is that Ospina exists and was a credible threat.  Her own instructions to counsel and her behaviour throughout is compelling evidence of her lack of willingness to comply and yet she had been placed in an impossible situation.  She was clearly driven by an overriding desire to save her son.

25.As I have said, and counsel accept, it is trite law that the usual discount for a plea of guilty of up to a third includes factors such as remorse, good character etc.  That does not mean that the court does not hear what counsel has advanced upon their client’s behalf nor does it suggest that it is not taken into account when looking at the justice of the sentence as a whole.  What it means is that these issues must not be double counted.  There must be good reason to reduce or to increase the usual discount.

DISCOUNT FOR PLEA OF GUILTY

26.In the normal course of events, the usual discount for a plea at the first opportunity is one of one third off the final sentence after trial when the starting point has been identified and adjusted to take into account the aggravating and mitigating features accordingly.  In this matter, the defendants entered their pleas of guilty to Counts 2 and 3 on the indictment, as amended, on day 5 of trial.  That is clearly not a plea at the first opportunity as outlined in HKSAR v Ngo Van Nam CACC 418/2014, but then again Counts 2 and 3 were not available to them at an earlier juncture.  That is a matter of fact and certainly not to be taken as any criticism of the prosecution.

27.As has been explained at paragraph 6 above, the late plea should not be laid at the door of the defendants either.  It is not the fault of either the prosecution or defence before the court today but arose because of a mistake made by Counsel for D2 at a stage prior to committal when he inadvertently sent a letter intended to be copied to Mr Marray to another Counsel instead.  In any event, it is clear that D2 intended before committal to offer a plea of guilty to the 342 grammes of cocaine, which she had imported.  That letter to the Department of Justice (“DoJ”) should have been copied to Mr Marray, who held the brief for D1 at that time.  Unfortunately, it was mistakenly sent to Mr McNamara, who has nothing to do with this case.  As a consequence, Mr Marray was unaware of such an offer and Mr Percy, who now represents D1 and who was not instructed until 28 May 2020, cannot assist with what might have happened but does rely upon D1’s consistent offer to collaborate.  The DoJ responded promptly exactly as you would expect, which was to say that they could make no decision at that stage in the absence of a similar offer by D1 and so the offer lay idle, but not in the mind of D2. I am told she has been of the same mind throughout.  No doubt if the indictment had been amended before trial, then D2 would have pleaded guilty to Count 3 immediately upon arraignment (perhaps at committal) but she would certainly have prayed in aid her early offer.  However, there was no immediate arraignment on the first day of trial because Mr Percy had made an application under s23 of the Criminal Procedure Ordinance, Cap 221, to have the indictment amended to include Counts 2 and 3 in the alternative to Count 1.  After consideration, the prosecution sought leave to amend in those terms and the indictment was put in its amended form the next day.  D2 did in fact initially plead guilty to Count 3 when it was put to her on 11 March 2021, but upon advice by Mr Whitehouse, who represented her at that time, she changed that plea to not guilty.  She was clearly not happy about that advice because she then promptly dispensed with his services, hence Mr Hotten now represents her for plea and sentence.

28.There is no doubt in my mind that D2 deserves to be considered as if she had entered her plea at the earliest opportunity and she should, at the very least, be entitled to a full one third discount.  What about D1?  He was inadvertently left out of this loop.  I am prepared to accept that he would have offered a plea to importing 740 grammes pre-committal for two reasons.  Firstly, because he and his counsel were unaware of the original offer and response which, no doubt would have been something Mr Marray would have wished to canvass and thereafter to advise upon.  There was no harm to D1 to make the offer in those circumstances even if he had not made such an offer independently.  Secondly, as discussed above, I believe there was a misinformed understanding as to the law of duress and through no fault of his own, at some stage, the defendant came to believe that this was a defence which was properly open to him on the facts.  I lay the blame for this at no one’s door. I do not know how it came about but I do understand the practical difficulties of advising a client in these circumstances.  The defendant would have needed the benefit of an interpreter at all times.  It would have been a slow process taking instructions in Lai Chi Kok.  What a lay person believes to be duress is unlikely to amount to it in law.  The law of duress is extremely strict. The waters were further muddied by issues of overseas evidence and their admissibility.  I believe counsel and D1 may not have been able to see the wood for the trees.  From what I have heard from Counsel and read on the file, it appears that Mr Percy sought to address what he perceived were difficulties in the case to be presented by D1 but D1, having had different advice from previous counsel, was reluctant to take fresh advice at a late stage and was focused more specifically on overseas documents than upon whether the defence would be sufficient to go to the jury.  Giving the defendant the benefit of the doubt on when and in what circumstances advice on duress was given, and bearing in mind he is not a subject of a common law system and neither is he a lawyer, let alone a criminal lawyer, I believe the correct path to take is to allow D1 the benefit of at least the one third discount for plea at the earliest opportunity to offset the series of unfortunate events which took place.

Enhanced discount

29.D1 was fully cooperative when arrested.  He sought to voluntarily offer assistance as early as November 2018.  It was not his fault that this offer was not taken up prior to the death of Ospina in February 2019.  Throughout his VRI he had offered to “collaborate” with the authorities and he provided access to his phone and other information. All of this was done on 30 June 2018.  Ospina, to whom I have referred above, was a drug lord of some significance.  He was well-known to the authorities in Columbia and to the public at large.  There is evidence that he had visited Hong Kong at least once previously and that part of his trafficking enterprise included this jurisdiction.  Given the threats made, D1 was extremely brave in offering to collaborate.  I am also informed that the authorities in Hong Kong had been tipped off by someone outside of the jurisdiction of the arrival of D1 and D2 and also as to all of the specific details of their travel.  As Mr Hotten suggested it is speculation as to how that came about but it is interesting to note that no steps were taken by Ospina in Columbia against their family when they failed to supply the drugs to their connection in Hong Kong.  It has been advanced before me that they may have been decoys to be sacrificed for the good of the enterprise.  That is possible.  That does not forgive their criminality in knowingly importing drugs but it is an indication of the vulnerability of D1 and D2 and perhaps their true position vis-a-vis Ospina.  All other things being equal, I accept that D1 and D2 attempted to and would have provided assistance.  Unfortunately for them, Ospina was assassinated shortly after their arrest.

Conclusion

30.I am prepared to increase by a small amount the discount I am prepared to calculate on the sentence of both defendants.  I do this on the basis of what has been discussed above and I will also deduct a further three months for the participation of both defendants’ in Father Wotherspoon’s programme.

31.For trafficking in 740 grammes of liquid cocaine D1 will go to prison for a period of 13 years and 1 month.  For trafficking in 342 grammes of liquid cocaine, D2 will go to prison for 8 years and 7 months.

Dr Nisha Mohamed, on fiat, for HKSAR

Mr Duncan Percy, instructed by Edward Lau Phoebe Ng Solicitors LLP, assigned by Director of Legal Aid, for the 1^st Defendant

Mr Frederic Whitehouse, instructed by Peter K.H. Wong & Co., assigned by Director of Legal Aid, for the 2^nd Defendant (10-12 March 2021)

Mr Keith Hotten, instructed by Peter K.H. Wong & Co., assigned by Director of Legal Aid, for the 2^nd Defendant (15-16 March and 9 April 2021)