HKSAR v. Quintero Bernal Diego-jhovanny

CACC 98/2021

[2022] HKCA 603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2021

(ON APPEAL FROM HCCC NO 301 OF 2019)

_______________

_______________

Before:  Hon Zervos JA in Court

Date of Hearing:  26 April 2022

Date of Decision:  26 April 2022

________________

D E C I SI O N

________________

1.The applicant pleaded guilty to trafficking in a dangerous drug and now applies for leave to appeal his conviction in order to reverse his plea.

2.The applicant and his girlfriend, both Colombian nationals, had smuggled into Hong Kong a large quantity of cocaine which was contained in pellets that they had consumed.  From the moment of his apprehension, the applicant stated that he owed a large sum of money to a fellow Colombian who threatened to harm him and his family if he did not deliver the drugs. 

3.The applicant and his girlfriend were jointly charged with trafficking of a dangerous drug and their trial was fixed to take place before Campbell-Moffat J and a jury.  In the pre-trial hearings, the applicant maintained that he would run the defence of duress. 

4.At trial, there was a change of counsel and the applicant was represented by Mr Duncan Percy.  There was a discussion concerning the laying of alternative charges against the applicant and his girlfriend for the actual quantity of drugs that each had consumed and trafficked.  This eventually led to the indictment being amended with two counts laid separately against the applicant and his girlfriend in the alternative to the joint count. 

5.There was also a protracted discussion with the judge on the law of the duress that took place over many days and resulted in a preliminary ruling from the judge which may have influenced the applicant not to run this defence and to enter a plea of guilty to the alternative count against him.  Mr Percy had submitted to the judge that in advancing the defence of duress there was an issue emanating from the authorities as to whether the threat had to be imminent.  He asked the judge for a ruling as to whether this was an element of the defence, and if it was, he stated he would have to advise the applicant that he could not run the defence and should plead guilty. [1] 

6.The judge gave her ruling on 15 March 2021.  She explained that the purpose of it was “to facilitate an agreed understanding of the law so far as it pertains to the case at hand, so that counsel can consider whether evidence will be available upon which the defence can be supported sufficient for that defence to go before the jury.”  She added that her ruling did not seek to make that decision in advance, nor indicate a view of the court on the facts prior to trial.  Even though the judge qualified her ruling by stating that it was a matter for the defendants if they wished to avail themselves of the defence of duress, she nevertheless expressed her opinion on a limited circumference of the facts as to the viability of various elements of the defence which she said was problematic for the defendants.  It would appear that the judge did not have before her the applicant’s instructions to his counsel, nor the evidence on which he was to rely in advancing this defence. Mr Percy was armed with that information and it is therefore unusual that he sought a ruling from the judge that addressed the law and the facts in order to advise his client.

7.I note that the judge in her sentencing remarks sets out in much greater detail the facts and circumstances of the threats that the applicant claimed he had been subjected to which led him to commit this offence.  The applicant was threatened by the lender of the money that he would be killed, and his family, including his elderly parents and young son, would be harmed, if he did not deliver the drugs. 

8.The question arises as to whether the judge’s preliminary ruling inadvertently put undue pressure on the applicant to abandon a defence that he wished to advance.  There is also the issue as to whether the judge was correct in the opinions she expressed based on the particular facts and circumstances that she seemed to take into account when dealing with the elements of immediacy and continuing threat, the taking of evasive action and the voluntary participation in the offence. 

9.In light of the unusual circumstances that have occurred at the applicant’s trial in addressing the question of the defence of duress, I will grant him an appeal aid certificate, which should be assigned to a new legal team.  The matters that need to be addressed are the nature of the ruling sought by defence counsel (although the defence of duress had only recently been addressed in the new Specimen Directions); whether the ruling was appropriate and correct in the circumstances; and whether the ruling or anything else inappropriately or unfairly influenced the applicant to abandon the defence of duress and to plead guilty to the offence he faced.

Ms Audrey Parwani, SPP, of the Department of Justice, for the respondent

The applicant appears in person

[1]  It should be noted that a new Specimen Direction on Duress was issued in the 2020 revision in Chapter 107.  The 2020 revision was issued in November 2020 and an amendment issued in February 2022.