HKSAR v. Rivillas Marin Luis Fernando

CACC 102/2020

[2021] HKCA 1762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 102 OF 2020

(ON APPEAL FROM HCCC NO 418 OF 2019)

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Before: Hon Macrae VP and M Poon JA in Court

Date of Hearing: 5 November 2021

Date of Judgment: 5 November 2021

Date of Reasons for Judgment: 26 November 2021

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Judgment of the Court):

1.The applicant faced three counts. The first count alleged that he and his co-accused, Sandoval Salas Felipe Arturo (hereafter the “2^nd accused”), on 13 September 2018 at Room B, Flat B, 11^th Floor, Hang Yu Building, Nos. 45-55 Cadogan Street, Kennedy Town (hereafter “Room B”), unlawfully trafficked in a dangerous drug[1], namely, 55.6 grammes of a solid containing 47.8 grammes of cocaine. The second count alleged that the applicant had in his possession[2], at Room B on 13 September 2018, 0.83 gramme of cannabis in herbal form. The third count alleged that the applicant on the same day and same place unlawfully trafficked[3] in dangerous drugs, namely, 780.42 grammes of a solid containing 677 grammes of cocaine and 5 tablets containing 0.96 gramme of 3,4-methylenedioxymethamphetamine (“MDMA”).

2.On 13 May 2020 the applicant pleaded guilty to all three counts and on 30 June 2020 was sentenced by Yau J (the “judge”) to 15 years’ imprisonment.  

3.On 5 November 2021, the application for leave to appeal against his sentence was allowed.  Treating the leave application as the hearing of his appeal, we quashed the 15 years’ imprisonment and reduced it to 13 years and 4 months.  We now give our reasons.

The summary of facts

4.On 13 September 2018 the applicant and the 2^nd accused were intercepted by police officers at around 9:56 pm when they were leaving Room B. The subject matter of counts one and two were found in possession of the 2^nd accused and the applicant respectively.  One of the keys taken from the 2^nd accused was the key for Room B.

5.In a suitcase secured by a padlock stored under the sofa inside Room B, which was unlocked by one of the keys found on the applicant, the following was found:

(i)  3 plastic bags containing a total of 780.4 grammes of a solid containing 677 grammes of cocaine (referred to collectively as “E3”);

(ii)  1 plastic bag containing 5 tablets totalling 0.96 grammes of MDMA (referred to as “E4”);

(iii)  1 plastic spoon containing traces of a powder containing cocaine;

(iv)  1 pair of plastic forceps containing 0.02 grammes of a powder containing cocaine;

(v)  1 plastic spoon containing traces of a powder containing cocaine;

(vi)  2 electronic scales, 1 of which contained traces of a powder containing cocaine; and

(vii)  2 glass bottles containing a total of 43 ml of a liquid which did not have any controlled substances in it.

6.Apart from the herbal cannabis found on him which the applicant said was possessed for his own use, all the other drugs were admitted to be possessed by him for the purpose of unlawful trafficking.

Mitigation

7.Mr Sherry, who represents the applicant in this leave application as well as in the court below, told the judge that the applicant engaged in drug trafficking for financial gain as his young son in Columbia was undergoing medical treatment. The court was addressed on a non-prejudicial statement to the police and his assistance in Father Wotherspoon’s anti-drug campaign.  The court was urged to adopt a starting point that was as close as possible to the 20-year mark, whilst recognizing that the applicant was a Form 8 holder and had been prosecuted for breach of condition of stay in March 2014.

The reasons for sentence

8.The judge noted the applicant had 4 previous convictions all dated 31 March 2014, two of which were related to dangerous drugs[4] for which the applicant was sentenced to three months imprisonment.  For count 1 which involves 47.8 grammes of cocaine the judge adopted a starting point of 7 years and 11 months imprisonment, enhanced to 8 years and 7 months on account of the applicant’s Form 8 status, and reduced by 2 months due to the applicant’s assistance in Father Wotherspoon’s campaign, thus sentencing him to 5 years imprisonment on his plea.

9.For count 2, a charge for possession of herbal cannabis, the applicant was sentenced to imprisonment for one month.

10.As for count 3, a starting point of 20 years and 4 months’ imprisonment was adopted for the 677 grammes of cocaine, increased to 22 years to take account of the small amount of MDMA and his Form 8 status, then reduced to 21 years and 9 months for his involvement in Father Wotherspoon’s campaign.  He was given a one-third discount for his plea and was sentenced to 13 years’ imprisonment for count 3.

11.The judge then combined the total weight for the cocaine in counts 1 and 3, which was 724.8 grammes[5], and said:

“The total weight of cocaine in these 2 counts is 724.8 grammes which, according to the sentencing guidelines, would have a starting point of 23 years 7 months’ imprisonment. Adding 1 month for the MDMA, the starting point becomes 23 years 8 months’ imprisonment.”

12.The judge increased the sentence from 23 years and 8 months to 25 years and 5 months’ imprisonment to take into account the applicant’s Form 8 status, and then reduced it by 3 months for his assistance rendered to Father Wotherspoon’s anti-drug campaign.  The sentence was reduced to 15 years for the applicant’s guilty plea and other mitigating circumstances.

13.The court then ordered 2 years of the sentence in respect of count 1 to run consecutively to the sentence in count 3 but to run concurrently with the sentence on count 2, resulting in a total of 15 years’ imprisonment for the 3 counts.

Applicant’s grounds of appeal and submissions

14.The sole ground of appeal raised by Mr Sherry is that the judge erred in adopting an overall starting point of 23 years and 7 months’ imprisonment for 724.8 grammes of cocaine.  According to the tariff, 20–23 years’ imprisonment would be the starting point for trafficking between 600 to 1,200 grammes of cocaine.  It is submitted that the 21 months’ enhancement for the applicant’s Form 8 status is on the high side.

Respondent’s submissions

15.This application is conceded by the respondent, represented by Mr Kevin Tang.  Mr Tang contends that the starting point for the aggregate amount of 724.8 grammes of cocaine in respect of charges 1 and 3 should have been on an arithmetic basis 20 years and 7 months, before adding one month for the MDMA and 21 months for the applicant’s status as a Form 8 holder, and then reducing it by 3 months due to the applicant’s assistance in Father Wotherspoon’s campaign, resulting in an adjusted starting point of 22 years and 2 months’ imprisonment. Affording the 40% discount as the judge did for the applicant’s plea and other mitigating circumstances would result in a sentence of 13 years and 3 months.

Discussion

16.The approach of the judge in affording individual starting points to each offence and then looking at the aggregate amount to determine the global starting point is correct: R v Siu Pui-ching,[6].  However, given the upper limit for the relevant band applicable to 724.8 grammes of cocaine is 23 years for 1,200 grammes, a starting point of 23 years and 7 months is plainly wrong.  That is where the sentencing exercise miscarried and it falls upon us to re-sentence the applicant.

17.We agree with the respondent that on a strict arithmetic calculation the appropriate starting point should be 20 years and 7 months.  In respect of the 21 months enhancement for the applicant’s Form 8 status, we would like to repeat what this court said in HKSAR v Shah Syed Arif [7], that committing an offence of such gravity is a serious breach of the trust and privilege extended to those whose claims for asylum are being processed.  While the court refrained from attempting to lay down any guidelines for the enhancement, that case concerned 55.88 grammes of cocaine and 1 year enhancement was found to be appropriate.  We are of the view that the enhancement of one month and 21 months for the amount of MDMA and the applicant’s Form 8 holder status is in no way excessive. 

18.We now turn to the discount of 3 months given by the judge in respect of the assistance given to Father Wotherspoon’s campaign.  We refer ourselves to paragraph 91 of the judgment of HKSAR v Kilima Abubakar Abbas[8] which held that participation in Father Wotherspoon’s “campaign” allowed judges a “a discretion to allow a token discount for this factor of not more than 3 months”.  This court stated that 3 months would be the limit but it does not mean an automatic 3 months’ discount would be given whenever the matter is raised in mitigation: HKSAR v Fundi Furaha Giles[9].

19.In the judgment of HKSAR v Cherop Caroline [10],  Macrae V-P said:

“43. …However, we wish to emphasise that judges should not rely on hearsay, anecdote and mere assertions of usefulness but must look at the letter(s) (properly adduced) that have been written by a defendant or applicant pursuant to this campaign, and consider the substance of what is said, as well as when and how the letters have been written, if they are properly to act on them in the exercise of their discretion. Otherwise, the complaints of inconsistency of approach at first instance will continue to bedevil the appellate courts.”

20.It would appear from the transcripts of the proceedings that the contents of the handwritten letter, in Spanish, attached to Father Wotherspoon’s letter was never translated before it was submitted to the judge.  Having had the benefit of its entire contents translated for us at the hearing, Mr Sherry conceded that it was more a letter of personal mitigation than a “very factual story” as characterised by Father Wotherspoon.

21.We do not think that the applicant’s participation in the so-called campaign warrants any more than a one-month discount.  We have canvassed the reasons for the 40% discount with the respondent. Mr Tang agreed that there were circumstances which justified a lenient view being taken.  We would not disturb that discount.

22.Having started with 20 years 7 months, we add one month for the MDMA and 21 months for the applicant’s Form 8 status. We then discount one month for the assistance to Father Wotherspoon’s campaign, which results in 22 years and 4 months.  Adopting the same 40% discount as the judge, the applicant is sentenced to 13 years and 4 months.

Conclusion

23.For reasons that we have given, we replace the sentence of 15 years by 13 years and 4 months.  We would not disturb the individual sentences but order 4 months of the sentence on charge 1 to run consecutively to the 13 years on charge 3.

Mr Kevin Tang, SPP of the Department of Justice, for the respondent

Mr James Sherry, instructed by Morley Chow Seto, Solicitors, assigned by Director of Legal Aid, for the applicant

[1] Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (DDO) Cap 134.

[2] Contrary to section 8(1)(a) and 2 of the DDO.

[3] Contrary to section 4(1)(a) and (3) of the DDO.

[4] Possession of dangerous drugs contrary to section 8(1)(a) & (2) of Cap.134; possession of a pipe / equipment fit and intended for smoking / injecting / inhaling dangerous drugs contrary to section 36(1) of Cap.134 and possession of a part I poison contrary to section 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance Cap.138.

[5] Appeal Bundle page 20 L-O.

[6] CACC 23/1997

[7] [2016] 4 HKLRD 664 at paragraph 32

[8] [2018] 5 HKLRD 88

[9] CACC 82/2017, paragraph 22.

[10] [2021] 3 HKLRD 904