HKSAR v. Quintero Bernal Diego-jhovanny

CACC 98/2021

[2022] HKCA 1750

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)

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Before:  Hon Zervos JA in Court

Date of Hearing:  24 November 2022

Date of Judgment:  24 November 2022

Date of Reasons for Judgment:  6 December 2022

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REASONS FOR JUDGMENT

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Introduction

1.The applicant and his girlfriend, Jamenez Sosa Angelica-Maria, who were D1 and D2 respectively, stood trial in the High Court before Campbell-Moffat J (the judge).  They were originally jointly charged with a single count of trafficking in a dangerous drug contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, namely 1,723 grammes of a solid containing 1,082 grammes of cocaine (Count 1).  The indictment was later amended to allege two alternative counts of trafficking in a dangerous drug, namely 1,230 grammes of a solid containing 740 grammes of cocaine against the applicant (Count 2); and 493 grammes of a solid containing 342 grammes of cocaine against D2 (Count 3).  The alternative counts represented the quantity of cocaine seized from each of them.  On 16 March 2021, they pleaded guilty to the alternative count alleged against them.  On 9 April 2021, the judge sentenced the applicant to a term of imprisonment of 13 years and 1 month.

2.On 6 May 2021, the applicant applied for leave to appeal against conviction, on the ground that his plea of guilty was null and void because he had been coerced into entering the guilty plea. 

3.On 26 April 2022, the applicant was granted an appeal aid certificate to address his sole ground of appeal due to the unusual circumstances in which he pleaded guilty to the count alleged against him.  It was directed that he be assigned a new legal team in order to address the nature of the ruling sought by defence counsel, 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.

4.Mr Jeremy Cheung was assigned as counsel to represent the applicant.  He filed perfected grounds of appeal on 29 June 2022, which can be summarised as follows: the judge procedurally erred in giving an exposition on the legal ingredients of the defence of duress (Ground 1); and the judge’s exposition on duress caused the applicant not to run this defence and to enter a plea of guilty (Ground 2).

5.During the leave hearing, Mr Cheung was asked if an assessment had been made concerning the nature and quality of the evidence to be adduced in support of the defence of duress and whether the applicant had been appropriately advised on the consequences of a successful appeal.  Mr Cheung was given time to consult the applicant, after which he informed the court that the applicant had instructed him to withdraw the application, adding that he had already served half his sentence.  The applicant confirmed his instructions in open court.  The leave application to appeal against conviction was withdrawn, and the applicant’s appeal was dismissed.  I indicated I would hand down reasons for judgment to address the submissions of the parties regarding certain issues raised by them that warranted comment.  This I now do.

The admitted facts

6.On 30 June 2018, the applicant and D2 were intercepted by customs officers on arrival at Hong Kong International Airport from Columbia via Sao Paulo, Brazil.  Suspecting that they had contraband internally concealed in their bodies, they were taken to North Lantau Hospital for examination, where foreign objects were found inside their body cavities.

7.The applicant was arrested and cautioned and, in response, said there was cocaine inside his body, consisting of about 40 items.  D2 remained silent when she was arrested and cautioned.

8.They were taken to Queen Elizabeth Hospital, where the applicant discharged 73 pellets, which were subsequently certified to contain the amount of cocaine, the subject of Count 2.  D2 discharged 29 pellets, which were subsequently certified to contain the amount of cocaine, the subject of Count 3.

9.In a video recorded interview, the applicant stated, amongst other things, the following:

(i)  he took a flight from Bogota, Columbia to Hong Kong via Sao Paolo, Brazil and Dubai, United Arab Emirates;

(ii)  he owed a Columbian male named Mauricio Arango Ospina the sum of Columbian Pesos $30 million, and to settle the debt, he was told to swallow pellets, containing the drugs on 28 June 2018 and deliver them in Macao;

(iii)  D2 was his girlfriend, who also swallowed pellets of drugs to help settle the debt;

(iv)  the male arranged the flights to Hong Kong and purchased tickets to Macau for both of them;

(v)  he and D2 would be paid a reward of US$5,000 for completing the drug delivery, although he later claimed he did not think he would be paid the money; and

(vi)  he confirmed that he had discharged 73 pellets of drugs.

10.In a written recorded interview on 2 July 2018, D2 stated, amongst other things, the following:

(i)  the applicant was her ex-boyfriend;

(ii)  the applicant was indebted to a Columbian male called Mauricio Arango Ospina, who instructed them to swallow drugs and transport them to Hong Kong;

(iii)  the applicant swallowed over 70 pellets of drugs whilst she had swallowed 29 pellets of drugs in a hotel in Columbia;

(iv)  she confirmed she discharged 29 pellets, which she believed contained cocaine.

11.The estimated street value of the drugs seized was $2,292,095.

12.The applicant and D2 admitted that, at the material time, they had knowingly possessed the drugs for the purpose of unlawful trafficking.

The defence case

13.Mr Cheung submitted that the applicant, prior to pleading guilty, had maintained that he committed the offence under duress, which he conveyed to his legal representatives at the time.  He had instructed his legal representatives that the person called Mauricio Arango Ospina was a well-known and extremely violent Columbian criminal who had threatened to hurt him and his family if he did not deliver the drugs. 

The application

14.The applicant in his initial ground of appeal, alleged that he was coerced into entering his plea of guilty, suggesting his trial counsel was flagrantly incompetent.  He was directed to file an affirmation to set out the full particulars concerning the claims made against trial counsel. In an affirmation dated 11 November 2021, he deposed:

(i)  he was not alleging incompetence against his trial counsel, nor was he prepared to do so because his counsel may have simply misunderstood his instructions or even his case on some of the identified matters of duress;

(ii)  he waived his right to legal professional privilege;

(iii)  he noted that the judge, in her ruling, had identified eight particulars that required some evidence before the defence of duress could be left to the jury and that his counsel should be asked as to his understanding of the applicant’s case regarding the eighth particular;[1]

(iv)  he had only pleaded guilty because the prosecuting counsel “forced” him to do so by conditioning  the acceptance of D2’s guilty plea on his guilty plea; and

(v)  he had always intended to contest the charge to which he had a defence.

The judge’s preliminary ruling

15.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.  In the pre-trial hearings, the applicant maintained that he would run the defence of duress. 

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

17.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. [2]  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 imminent.[3]  

18.The judge gave her ruling on 15 March 2021.  She explained the nature and purpose of her ruling as follows:

“3. It became clear at the beginning of the trial, and before the jury was empanelled, that there may have been some divergence of understanding as to whether the defence of duress was available on the facts of this case taking into account the prosecution case on the papers, and the proposed defence case, which was outlined to the Court so far as the defence felt able so to do. As a result of the exchange between the Bench and the Bar, Mr Percy on behalf of D1 asked the Court if the defence could have the benefit of a ruling upon the Court’s understanding of the law of duress as it pertains to the case at hand i.e. duress by threats. This was a sensible and pragmatic request, for if the defence were bound to fail for some reason known and accepted at the outset, defence counsel would be in a better position properly to advise their clients, who, after all, are not citizens of a common law jurisdiction and are at a disadvantage as to their understanding of the common law.

4. This ruling does not seek to provide an overview of the whole of the law on duress. Nor is it an indication of the view of the Court on the facts prior to trial. It is made to facilitate an agreed understanding of the law so far as it pertains to the case at hand, so that all counsel can consider whether evidence will be available upon which the defence can be supported sufficient for that defence to go before the jury. It certainly does not seek to make that decision in advance. In providing this summary, the Court has provided counsel with a provisional opportunity to agree certain principles of practice and has heard counsel on a preliminary basis on some of the issues which arise for particular consideration. Neither defence counsel have indicated they are in any way prejudiced by so doing, indeed they seek this clarification in order to be able to properly advise their clients. In the interest of fairness to both the prosecution and defence, this Court is providing a summary of its understanding of the applicable law in respect of duress by threats for that limited purpose and not in any way to indicate that it will not hear counsel on the way forward or to suggest that the Court has already taken any view on the facts of the case.” (Emphasis added)

19.The judge said that the purpose of the ruling 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 sufficiently 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.  She later explained that whether the defence may go before the jury was a matter for the consideration of the trial judge after hearing counsel upon the matter.  She acknowledged that there was limited scope for a judge to withdraw the defence from the jury, noting at this juncture she was not being asked to do so as she had not heard all of the evidence which was intended to be placed before the jury.[4]

20.It would appear that the judge did what she said she was not going to do, addressing the viability of the defence of duress on her understanding of the facts of the defence case.  When addressing the elements of the defence of duress she made the following comments. 

21.Of Threats, she said:[5]

“Having heard Mr Percy’s submissions, the court will consider taking the defence case at its highest so that as currently suggested there appears there will be evidence of the threats sufficient to meet this element of the offence.”

22.Of The Objective Test, she said:[6]

“Mr Percy submits that there will be defence evidence as to this. He has indicated he will be calling his client.”

23.Of Causation, she said:[7]

“… on the face of the submissions there is a prima facie case of causation.”

24.Of Immediacy and Continuing Threat, she said:[8]

“As the evidence currently stands there is, at its highest a four-day period from 27 June to 30 June 2018, when the defendants could have availed themselves of the opportunity to avoid the immediate consequences of non-compliance. The facts as they currently stand are as to a future act of retribution upon failure to comply. There is no evidence of any immediate, or almost immediate threat as at the time, in fact, the threat was made or at the time of the beginning of the actus reus when the cocaine was ingested. There is currently no evidence from D2 upon this point and she would stand to be considered quite separately upon this issue as it appears that no threats were made to her directly.”

25.Of Taking Evasive Action, she said:[9]

“Even without the possibility of the threat having been made some one or two weeks before travel, which is in itself problematic, and assuming further sufficient threat or threats were made at the time of the consumption of the drugs and at the time of travel, the defendants travelled through 3 separate jurisdictions outside of Columbia. At each and every stage there may be evidence as to why the defendants did not avail themselves of the opportunity to appeal to the local police or airline authorities or to surrender themselves such that it would appear they had been arrested rather than sought assistance. At present there is no suggestion of such evidence, quite the converse, as D1 had offered to assist within his VRI thereby placing himself (and presumably others it is defence is to be accepted)  a clear risk of retribution in any event.”

26.Of Voluntary Participation, she said:[10]

“It appears to be a mainstay of the defence case that they were placed under duress by Ospina, who was a well-known and extremely violent Colombian criminal. Their relationship with Ospina, the nature of the loan and the connection between both D1 and D2 is currently unknown. What is known is that it is part of the defence that they voluntarily had previous dealings with him which placed them, in the event, at the very risk of which they complain. Nothing will turn upon how the dominant party Ospina chooses to exploit that weakness. It is not open to the defendants to say that the debt cannot be connected to the offence because this is their case, or that their relationship in taking a loan could not have led to them foreseeing they would be forced to traffic in drugs because they knew he was a violent criminal who dealt entirely in drugs. This is therefore an element of the defence which is to the benefit of the prosecution and, without more, is problematic for the defence.”

27.The judge concluded her ruling by making the following statement:[11]

“It is entirely a matter for the defendants if they wish to avail themselves of this defence. The approach of the court during trial is not limited to this preliminary ruling, which has been provided upon the application of D1 to provide an outline only of the matters which are required to be considered by the court before the defence may go to the jury. The parties accept other matters may very well come to the fore during the trial, which have not been disclosed to the court and all counsel may have the benefit of other research not currently placed before the court and upon which the court will hear them either now or at the appropriate time.”

28.This ruling was rather unusual as it was more like an advisory opinion from the judge on the law of duress as it may apply to the defence case in order to enable defence counsel to advise their clients on the viability of advancing such a defence at their trial. 

29.Having considered the ruling, and after he had had an opportunity to speak to the applicant during the court adjournment, Mr Percy accepted the breakdown of it as a basis for going forward.[12]  Indeed, he confirmed that the applicant realised the hurdles he had to overcome and that the applicant was making progress in understanding the matter.[13]  The next day, Mr Percy indicated that the applicant would plead guilty. 

The consequences of the ruling

30.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 on the viability of various elements of the defence which she said was problematic for the defendants.  Obviously, the judge did not have the applicant’s instructions to his counsel before her, nor the evidence he was to rely on in advancing this defence.  Mr Percy was armed with that information, and it may be viewed as unusual that he sought a ruling from the judge that addressed the law and the facts in order to advise his client.

31.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. 

32.For the purpose of this application, the applicant had waived his legal professional privilege and disclosed his instructions to and discussions with his legal representatives at trial.  It was apparent that his case was that he had transported the drugs because of threats of violence against him, his girlfriend and his family by a person who was a known criminal and to whom he was indebted.  He was queried by his legal team as to why he did not do anything to notify the authorities or avoid the threats made against him.  He explained that he was afraid of Ospina, who told him someone else would follow him throughout his journey.  He said Ospina also told him they held his nephew and would kill him and harm his mother.  From the written instructions, there was extensive discussion about the applicant having committed the offence under threat by Ospina.

33.Mr Percy provided a written response to the allegations made by the applicant in two letters dated 29 June and 30 August 2022.  He explained that he was aware of the practice of trial judges being asked occasionally to provide specific preliminary rulings or indications on points of law prior to arraignment.  Accordingly, he invited the judge to provide a ruling or indication as to the elements of the defence of duress which she would be directing the jury on when she came to sum up the case to the jury.  He said, “I wanted to know whether her proposed directions or more were consistent with my understanding of the law which would guide me on what advice I should give to D1.”  The judge indicated that she was willing to provide the relevant information and made a ruling.  He said, “Her ruling made it almost impossible for D1’s defence to succeed, and that was the advice I gave him.”

34.It appears he was of the view that the ingredient of remaining in imminent fear of death over a protracted period prior to the applicant’s arrest could not be achieved, and this had a bearing on his advice to the applicant.  He said another worrying factor was that the WhatsApp messages and the photographs retrieved from the applicant’s mobile telephone may have possibly undermined his defence.  He said none of the messages was threatening, and the photographs were inconsistent, with a couple terrified by death threats being forced to be reluctant couriers to traffic in drugs.  It was on this basis that he was of the view that there were clear advantages for the applicant to plead guilty, as in his opinion, there was a very low prospect of a successful defence based on duress.  He also felt that the applicant was influenced by his girlfriend’s decision to plead guilty to the charge she faced.

35.When the judge gave her ruling, the trial had not commenced and no evidence was before her on which to base a decision. However, she did not restrict her ruling to the law.  She addressed the elements of the defence of duress by referring to the facts of the case as she understood them, primarily relying on the submissions of the parties and the case materials.  Throughout her ruling, she refers to “evidence”, but there was no evidence properly before her.  Her ruling morphed from directions of law on the defence of duress to an advisory opinion on the applicability of the defence of duress to the circumstances of the case. 

36.The question arose whether the judge’s preliminary ruling inadvertently put undue pressure on the applicant to abandon a defence he wished to advance.  There was also the issue of 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.  However, that has all become academic because the applicant has withdrawn his appeal.

37.Whilst I have no doubt that the intentions of all concerned were to address an issue that would have a significant bearing on the case, it involved the judge giving a formal ruling on the applicant’s defence as opposed to having a discussion with counsel as to issues of law and factual matters that normally takes place in the conduct of the trial.  Instead of being a ruling on the law on which defence counsel could then discuss with his client, armed with full and complete instructions, it was an opinion by the judge on the viability of the applicant’s defence based on a limited understanding of the facts, rather than on evidence properly adduced either in a voir dire or at trial.

38.A criminal trial is conducted on the basis that the parties determine the evidence to be placed before the jury and identify the issues that the jury needs to consider.  The jury is to decide facts and issues arising from the evidence and ultimately determine whether the defendant is guilty or not guilty of the crime or crimes charged.  The verdict must be based on the evidence produced by the parties and in accordance with the law as explained by the judge.  A judge ensures that the case is conducted fairly in accordance with relevant law and practice, and that all parties involved are given the opportunity for their case to be presented and considered.  The judge may be required to make decisions on questions of law throughout the trial including whether evidence sought to be led by a party is relevant and admissible.  The judge does not determine any facts, resolve any issues raised by the evidence or decide the verdict.[14] The ultimate objective of the judge is to ensure that a defendant has a fair trial.

39.This case highlights the different roles and functions of those involved in a criminal trial.  The role and responsibilities of a judge and counsel are clearly defined and, while a particular result may seem just and appropriate, it should be arrived at according to the relevant law and procedure under our criminal justice system.  The judge was right to respond to counsel’s application on the court’s directions on the defence of duress but should have taken more care not to express a view by way of a formal ruling on the viability of the defence of duress in the present circumstances.

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

Mr Jeremy Cheung, instructed by Simon Si & Co, assigned by the Director for Legal Aid, for the applicant