HKSAR v. Quintero Bernal Diego-jhovanny

Case No.CACC 98/2021[2024] HKCA 526

Court

Court of Appeal

Date07 Jun 2024

Judge—

Case Document

100%Judiciary

CACC 98/2021 [2024] HKCA 526

On appeal from [2021] HKCFI 968

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)

_______________

	HKSAR	Respondent
	v
	Quintero Bernal Diego-Jhovanny	Applicant

_______________

Before:

Hon Zervos JA in Court

Date of Hearing:	6 June 2024
Date of Judgment:	7 June 2024

________________

J U D G M E N T

________________

1.The applicant and his girlfriend, Jimenez Sosa Angelica-Maria, whose trial designations were D1 and D2 respectively, stood trial in the High Court before Campbell-Moffat J (the Judge). They were jointly charged with a single count of trafficking in a dangerous drug contrary to s.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.

2.On 9 April 2021, the Judge sentenced the applicant to a term of imprisonment of 13 years and 1 month.

The procedural history

3.On 6 May 2021, the applicant applied for leave to appeal against conviction, on the ground that his guilty plea was null and void as he was coerced into entering the plea. His application for legal aid was refused on 15 June 2021.

4.On 26 April 2022, the applicant was granted a legal aid certificate to assist him in his application for leave to appeal against his conviction. On 24 November 2022, in the course of the hearing of the leave application, the applicant, through his counsel, Mr Jeremy Cheung, withdrew his application to appeal against conviction. The Court, in its judgment, handed down on 6 December 2022, addressed the applicant’s complaint that he had been forced to abandon his defence of duress and plead guilty to the alternative count. It was noted that the applicant’s counsel at trial made an application to the Judge for a ruling on the elements of the defence of duress. The Judge instead gave an opinion on the viability of the applicant’s defence of duress based on a limited understanding of the facts, rather than on evidence properly adduced either in a voir dire or a trial. [1]

5.On 2 December 2022, the applicant filed an application for leave to appeal against sentence out of time. Attached to the application was an affirmation dated 22 November 2022 (the applicant’s 1^st affirmation), in which he complained that the sentence was manifestly excessive. The applicant applied for legal aid to appeal his sentence, which was refused on 14 December 2022.

6.After an exchange of correspondence, it was eventually confirmed by Mr Jeremy Cheung and Ms Dorothy Tang that they would act on behalf of the applicant under the Bar Free Legal Service Scheme. On 30 November 2023, Perfected Grounds of Appeal Against Sentence were filed in which it was advanced that the Judge failed to take into account duress as a mitigating factor in sentencing and give appropriate sentencing reductions accordingly (Ground 1); the Judge erred in failing to consider that the applicant was a victim of human trafficking (Ground 2); and in all the circumstances, the sentence passed was not fair, balanced and just (Ground 3).

7.In an affirmation dated 19 October 2023 (the applicant’s 2^nd affirmation), in support of his leave application out of time, the applicant stated that he did not appeal his sentence because he had always wanted to demonstrate his innocence. He maintained that he pleaded guilty after seeking advice because he considered the jury might not be able to understand the dangerous situation he was in. He maintained that taking into consideration the facts of the case, his sentence was excessive.

The admitted facts

8.The facts outlined to the Judge and admitted on behalf of the applicant were as follows.

9.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.

10.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.

11.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.

12.In a video recorded interview on 2 July 2018, 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 (Ospina) the sum of Columbian Pesos $30 million (the equivalent of approximately US$10,000), 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.

13.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 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.

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

15.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

16.Prior to the applicant’s plea of guilty on 9 April 2021, his defence was that he had committed the offence under duress, as Ospina had allegedly threatened to hurt him and his family if he did not deliver the drugs.

17.At the time of sentencing, the applicant was 39 years old, of previous good character and had a 11-year-old son. He lived in Columbia and had his own business importing gym equipment into Columbia. To finance his business, the applicant had obtained a loan of 30 million Columbian pesos from Ospina, who had details of his whole family, including his young son and elderly parents. As the applicant was unable to repay the loan, he was threatened with a pistol by Ospina, who asked him to transport drugs into Hong Kong.

18.It is appropriate to note D2’s position in the case against her. She claimed that she was made to transport the drugs because of the applicant’s indebtedness to Ospina. She also claimed that she had been threatened by Ospina. However, it later emerged during the proceedings that she had wanted to plead guilty to the offence at an early stage of the proceedings and did not want to run the defence of duress as previously suggested by her counsel.[2] This factor became a relevant consideration when the Judge gave D2 as well as the applicant a full one third discount for their guilty pleas late in the proceedings.

The reasons for sentence

19.The Judge referred to the procedural history of this case[3] and the applicant’s background and mitigation submitted by defence counsel[4]. The Judge referred to the sentencing guidelines for trafficking in cocaine as set out in HKSAR v Abdallah [5].[6] Noting that the applicant pleaded guilty to importing 740 grammes of cocaine, this would fall into the bracket for trafficking in 600 to 1,200 grammes of cocaine, which warranted a starting point of between 20 and 23 years’ imprisonment. Having determined, with reference to HKSAR v Herry Jane Yusuph [7], that the applicant’s role was a mere courier, which warranted a starting point of 20 years and 9 months, the Judge gave a further 6 months’ discount on account of the threats that the applicant faced. She enhanced the starting point by 9 months on account of the international element, resulting in a nominal starting point of 21 years’ imprisonment.[8]

20.As to the level of discount to be given, she took into account the guidelines in HKSAR v Ngo Van Nam [9], and despite the applicant pleading guilty on day 5 of the trial, the Judge took into account the procedural history prior to trial, and gave the applicant a full one third discount.[10] She gave a further reduction of 8 months and 3 months, respectively, for the applicant’s offer of assistance to authorities and his participation in Father Wotherspoon’s anti-drug programme,[11] resulting in a sentence of 13 years and 1 month’s imprisonment.

The submissions

21.Ms Audrey Parwani, for the respondent, accepts that a court will not disallow a meritorious application which is out of time, but it will depend upon the relevant circumstances. However, she submits that this is not such a case and there is no good reason for the delay advanced by the applicant. She points out that in the applicant’s 2^nd affirmation, he stated that the reason he had originally applied for leave to appeal against conviction was only because he wanted to demonstrate his innocence. She argues that appealing against conviction is no bar to filing an appeal against sentence at the same time. She supports her argument by making the following points. This application was made more than 19 months out of time, during which the applicant had the full benefit of legal advice and representation. It is apparent from the date of the applicant’s 1^st affirmation (22 November 2022) that he had in mind the intention to appeal against sentence well before the hearing for leave to appeal against conviction but chose not to do so. The applicant decided at the leave hearing against conviction to withdraw his application and to supplement this with an application for leave to appeal against sentence, just as he had sought a preliminary ruling during his trial to test his defence of duress, and decided to plead guilty when it did not appear viable, only to then appeal against conviction. Ms Parwani submits that these were tactical decisions, and not a good reason for the delay. She adds that this is typified by a request for assessment as a victim of human trafficking made on 14 November 2023, over 5 years after the commission of the offence and about 1 year after he had filed his leave to appeal against sentence out of time. She submits that this application does not warrant the court to exercise its discretion to grant leave out of time.

22.There is merit in the respondent’s submission and I agree that there is little or no justification for the delay in filing the leave application against sentence. It is clear that the applicant had in mind appealing his sentence but decided not to do so early in these proceedings.

23.I turn to consider the merits of the grounds of appeal that have been advanced by the applicant.

Grounds 1 and 3

24.The Judge had correctly referred to the sentencing guidelines in HKSAR v Abdallah. It was accepted by the parties that trafficking in 740 grammes of cocaine would warrant a starting point of about 20 years and 9 months. No issue is taken with the starting point. As regards the international element which was an aggravating feature, the Judge had only enhanced the starting point by 9 months, which, as submitted by the respondent, was below the guidelines of 1 to 2 years for between 500 and 1,000 grammes of cocaine as set out in HKSAR v Chung Ping Kun [12]. It is submitted by the respondent, that given the circumstances of the case and the amount of drugs involved, the Judge could have further enhanced the sentence for this factor.

25.Mr Cheung in his written submission argued that the Judge did not give any weight to the duress and threats faced by the applicant in committing this offence, but instead considered it as a factor of mitigation subsumed in the one third discount for the his guilty plea.

26.He refers to cases where it had been held that a sentencing court should consider whether a defendant had been subjected to coercion or threats in committing the offence: Secretary for Justice v Wan Hoi Ming[13], applying R v John Taonis[14]. However, it has also been held that considerable care had to be taken not to accord “stress and fear” too much weight lest it be thought that it in any way justifies what was done: HKSAR v Yip Chu Sum [15].

27.Lord Bingham in R v Hansan, having endorsed the observation that courts should be alive to the need to apply reasonable, but strict standards for the application of the defence of duress because verification of such a defence may prove difficult, went on to explain that the circumstances of the case may be taken into account when sentencing[16]:

“If it appears at trial that a defendant acted in response to a degree of coercion but in circumstances where the strict requirements of duress were not satisfied, it is always open to the judge to adjust his sentence to reflect his assessment of the defendant’s true culpability.”

28.Mr Cheung relied on the above quoted passage but left out the phrase as “it appears at trial”, which would indicate the need for an adjustment to a sentence for this factor, there would have to be a reliable basis to do so.

29.Without any prior notice, Mr Cheung, in his oral submissions, accepted that the Judge had taken into account the applicant’s mitigation of alleged threats made against him. Whilst the Judge had mentioned that the one third discount for guilty plea “includes factors such as remorse, good character etc” and did caution against double counting,[17] she had in fact, exercised her discretion to give a discount of 6 months on account of the alleged threats faced by the applicant when determining the starting point.[18] However, he argued that the Judge did not follow the sequence of steps in Herry Jane Yusuph, and as a result, discounted the 6 months from the starting point rather than after the one third discount, thereby depriving him of a sentence of 12 years and 11 months, namely a difference of 3 months.

30.Ms Parwani submits that this is not a material matter as the Judge was generous in the enhancement she gave for the international element and the discount she gave to the applicant’s sentence for his guilty plea. She argues that the Judge gave the applicant a full one third discount when she was not obliged to do so. According to the guidelines set out in HKSAR v Ngo Van Nam, the Judge could well have given a discount of less than 20% as the applicant pleaded guilty after the trial had started.

31.In addition to the one third discount, the Judge gave 3 months’ reduction for the applicant’s participation in Father Wotherspoon’s programme and a 8 months’ reduction for the applicant’s willingness to assist the authorities, notwithstanding he did not in fact give any information which lead to any fruitful result. She notes that this equates to an overall discount of about 39%. She contends that the applicant has no cause for complaint as the sentence was lenient in the circumstances.

32.In my view, there is no basis for complaint of the sentence imposed on the applicant. He was treated leniently by the Judge and given generous discounts to his nominal sentence.

33.Notwithstanding that the applicant had abandoned his defence of duress, the Judge nevertheless accepted that threats had been made to him and that he did the bare minimum in smuggling the drugs. She reduced his starting point by 6 months to 20 years and 3 months’ imprisonment.[19] It is, therefore, not correct that the Judge had subsumed “duress” in the one third discount for his guilty plea as originally argued by Mr Cheung. She gave an additional discount of 6 months for this factor.

34.As already noted, the applicant pleaded guilty during the course of the trial. However, the applicant was given the full one third discount for his guilty plea, which was not timely and could have been considerably less. As I understand the Judge’s reasoning, it appears he was given the full one third discount because of the position taken by D2 in wanting to plead guilty at an early stage and that the applicant was misinformed about the law of duress. In her reasons for sentence, the Judge noted that D2 at an early stage was prepared to plead guilty in respect of the drugs she imported into Hong Kong and did not want to run the defence of duress. However, because of miscommunication by her counsel, her position was conveyed to the prosecution and the court at some later stage. With this in mind, she considered that D2 deserved to be treated as if she had entered her plea at the earliest opportunity and “at the very least, be entitled to a full one third discount.”[20] She explained that the applicant had been “left out of this loop” and she extrapolated he should also receive a full one third discount for two reasons: [21]

“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 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.”

35.I have already given a judgment in respect of the Judge’s ruling on the defence of duress in this case, which sets out the circumstances and outcome of the opinion given by the Judge as to the viability of the applicant’s defence of duress. This was in response to the applicant’s original complaint against his conviction that he had been forced to plead guilty when he wanted to run the defence of duress.

36.Clearly, from an overall assessment of the sentence the applicant received, he was treated leniently in the circumstances. These grounds of appeal are not reasonably arguable.

Ground 2

37.The applicant now raises a request for assessment as a victim of human trafficking over 5 years after the commission of the offence.

38.Mr Cheung referred to the recent decision of this Court in HKSAR v Raman Kapusamy [22], which he wrongly assumed it forbade consideration by a sentencing court that a defendant was a victim of human trafficking. In that case, this Court addressed the argument that a court, when sentencing an international drug courier, should place greater emphasis on an offender’s vulnerability, role and culpability. Reference was made to the international policies and obligations regarding victims of human trafficking. In the section, entitled “The respondent’s reply”, the Court said:

“30. As for the suggestion that the courts in Hong Kong should follow the approach of other jurisdictions in sentencing so-called “drug mules”, it was the respondent’s position that the Hong Kong courts have on several occasions considered the application of the Sentencing Council Guideline in England and Wales, but found it inapposite in the context of Hong Kong, which aims in this area of the law at consistency of punishment and severe sentences. An approach which allows personal circumstances such as alleged poverty, gullibility, or being a victim of human trafficking to become a mitigating factor does not sit well with the established principles of this Court. Indeed, such a policy could be exploited and abused by international drug traffickers, who would use vulnerable persons to deliver their dangerous drugs. Such persons would then use such vulnerability to plead for a reduced sentence. This would jeopardise the sentencing regime in Hong Kong, which has proved to be effective in combatting, or at least containing, the evils of international drug trafficking^{^[23]}.”

39.Later, in the section entitled “Discussion”, the Court addressed the submissions on this point, stating, amongst other things:

“71. … it is a matter for the courts of Hong Kong how they determine their own policy for combatting drug trafficking in this jurisdiction. As was pointed out in Kilima Abubakar Abbas, Hong Kong has been working out its own guidelines in respect of trafficking in dangerous drugs for more than 40 years and rather longer than most other jurisdictions[24]. Noting that sentencing policy will vary from country to country, it was also said in Kilima Abubakar Abbas that[25]:

‘70. In the context of Hong Kong, sentencing practice and policy will also have to reflect the fact that this is a city with its own legal system, whilst nevertheless part of a large country with a different legal system; and it will, as a matter of comity, want to bear in mind the attitudes of its neighbours to particular crimes and the seriousness with which those crimes are regarded by its neighbours.

71. Since the scourge of drug trafficking is a world-wide problem, it can sometimes be useful to look at the way other countries choose to tackle the problem. However, each country will shape its own approach to suit its own conditions, the desires of its own people, its attitudes to punishment as well as the particular manifestation of the problem in its respective community.’

72. Having said that, we do recognise that very occasionally there may be a defendant who, for one reason or another, perhaps because of physical or mental disability, infirmity or frailty, or because he has been genuinely scammed or tricked, becomes involved in a crime from which he then finds it difficult to extricate himself. Such a defendant comes to realise at some late stage what is required of him but nevertheless carries on with his part in the crime knowing what he is doing, however reluctantly, but in circumstances falling short of duress.

73. Judges will approach such cases, when they arise, with realism, fairness and common sense, in the knowledge that such claims are very easy to make after a defendant has been caught but less easy to substantiate. What we would expect, as a minimum, where such circumstances are advanced is an immediate full and frank explanation by the defendant to the relevant authority upon arrest as to how he came to be involved; and the existence of other evidence suggesting that the defendant became unwittingly ensnared and reluctantly involved in the commission of the offence, from which he found it difficult to extricate himself. Such claims will normally follow a plea of guilty. If such evidence is lacking, the defendant should be expected to give evidence and be cross-examined on his contention and the circumstances which caused him to commit the offence at a Newton hearing.”

40.As stated by the Court, there will be cases where a defendant can raise their personal circumstances and the circumstances in which they became involved in trafficking dangerous drugs, but there has to be a sound basis for doing so and such cases should be approached with “realism, fairness and common sense”.

41.Ms Parwani explains that the objective of the regime in Hong Kong in the identification of Trafficking in Persons (TIP) victims, apart from the involvement of the victim in the investigation of the case, is to provide timely protection and assistance to victims of TIP, as well as for them to act as witnesses in legal proceedings and the facilitation for their return to their home country in appropriate cases. See ZN v Secretary for Justice (2020) 23 HKCFAR 15. She submits that the applicant cannot argue that the Judge had erred or could be criticized for not taking into account the applicant's potential claim of being a victim of human trafficking during the sentencing procedure when it was never raised, either by the applicant, or through his legal representative at any stage of these legal proceedings, including in mitigation.

42.In any event, the Judge in sentencing was aware of the threats and circumstances put forward during the “duress” hearing and in mitigation by his counsel, which she had already taken into account. This ground of appeal is not reasonably arguable.

Ground 3

43.Mr Cheung argues that the Judge, in addressing the sixth step in Herry Jane Yusuph, did not stand back and look at the overall sentence and failed to consider duress as a mitigating factor and the applicant as a potential victim of human trafficking. He claimed that this resulted in an unfair and unjust sentence.

44.The criticism that the sentence was unfair and unjust is not only unsupported by the facts and circumstances of the case, but also based on a misunderstanding of the sixth step of Herry Jane Yusuph. As explained by this Court in HKSAR v Lee Ming Ho [26], “the Court in Herry Jane Yusuph was not advocating some form of unprincipled, final reduction whenever a sentencing judge feels the sentence might be an overbearing or crushing one for the defendant concern: it was a warning of the danger of adding up the sentences for multiple counts or multiple aggravating factors leading to an inflated overall starting point out of proportion to the defendant’s criminality.”

45.In my view, the applicant has no cause for complaint in the sentence that he received, which was lenient in the circumstances. This ground of appeal is not reasonably arguable.

Conclusion

46.There is no merit in this application as the grounds are not reasonably arguable. The application for leave to appeal against sentence out of time is refused.

47.The applicant is reminded of his right to renew his application for leave to appeal against his sentence out of time to the Court of Appeal, but he is also informed of the consequence 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.