Prieto Vazquez Talina v. The Government of the Hong Kong Special Administrative Region and Another
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HCAL 1228/2020 [2024] HKCFI 2020 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1228 OF 2020 ________________________
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_________________ D E C I S I O N _________________ A. Introduction 1.The Applicant was convicted of trafficking in a dangerous drug in Hong Kong High Court criminal proceedings, HCCC 191/2012, and on 13 May 2013 was sentenced to imprisonment for 27 years. Though she applied to appeal against conviction, the appeal was subsequently abandoned in June 2014. 2.Though the Applicant was sentenced on 13 May 2013, she had been held on remand since 19 September 2011. Subject to good institutional behaviour, the Applicant should be discharged on 15 September 2029. 3.By Form 86 dated 18 June 2020, the Applicant sought leave to apply for judicial review so as to challenge the decision (“Decision”) of the Putative Respondents not to give consent for her transfer under the provisions of the Transfer of Sentenced Persons Ordinance Cap 513 (“TSPO”). The Decision was communicated to the Applicant by the Security Bureau’s letter dated 23 March 2020. 4.It seems that the application was thought, unfortunately and incorrectly, to involve an intended challenge to a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“Board”). The incorrect categorisation appears to have been discovered when the Court made an inquiry of the Board in April 2024, the response to which revealed that the Applicant had not made any appeal/petition against a non-refoulement claim decision to the Board. Though the application to apply for judicial review had been filed with the assistance of an officer of the Mexican Consulate, I am not aware of any enquiries made of the Court by any of the Applicant or someone assisting her, or by the Putative Respondents, in the interim period. 5.In any event, the proceedings were then brought to my attention, and I gave directions on 13 May 2024, giving leave to the Putative Respondents to file and serve (with copies of any relevant documents) an Initial Response to the application for leave to apply for judicial review, and leave to the Applicant to file and serve a reply to the Initial Response. I also indicated that depending on the contents of those documents, if received, I would decide whether to deal with the application for leave to apply for judicial review on paper, and if so that I would proceed to do so without further notice to the parties. 6.By virtue of a subsequently extended timetable, the Initial Response was due to be filed on or before 2 July 2024, and any Reply by the Applicant on or before 23 July 2024. 7.An Initial Response dated 2 July 2024 has been provided, signed by Ms Jess Chan, Acting Senior Assistant Law Officer (Civil Law). However, the Applicant has not filed any Reply or other response to that Initial Response, either by the extended deadline or to date. 8.Having considered the materials, I am of the view that the matter can appropriately be dealt with on the papers. This is my Decision. B. Conviction and Sentence 9.As the Putative Respondents took into account, when making the Decision, the gravity of the offence for which the Applicant was convicted, it is appropriate briefly to identify some of that background, which can conveniently be found in the transcript of the sentencing hearing in HCCC 191/2012. 10.The proceedings involved trafficking in drugs in a quantity which the sentencing judge described as “staggering”. Persons including the Applicant were caught carrying 538 kg of a mixture with an active cocaine content of 422.5 kg. The street value of the drugs was estimated at over half a billion Hong Kong dollars (approximately US$65 million). 11.The Applicant was the 4th defendant in those proceedings. Amongst the six defendants, she alone pleaded not guilty, as was her right. She was found guilty after trial on one of the two counts laid against her. As the sentencing Judge remarked, by her not guilty plea, she forfeited her expectation of a substantial discount on sentence. Nor could any further discount be given to reflect her previous good character and family circumstances, where it was she who gambled with her own and her child’s happiness by becoming involved in the drug trafficking enterprise. As the sentencing judge noted, the Applicant involved her child in it by bringing him here to Hong Kong from Mexico, and the judge was satisfied that the Applicant (and the 2nd defendant) had used their child in a most cynical manner as a charade to deflect suspicion from themselves, for (as the sentencing judge rhetorically asked) who would suspect that a young couple and their small child were carrying a vast quantity of cocaine? 12.Noting that the Applicant was found guilty by the jury on a count which related to 5.98 kg of a mixture containing 4.6 kg of cocaine, and by reference to the sentencing guidelines/bands, the sentencing judge took as the starting point a sentence of 26 years’ imprisonment, and added to it one year for the international aspect, making the total of 27 years. For the reasons he had already explained, he stated that there could be no discount in sentence and the Applicant must serve the full 27 years of imprisonment. C. Transfer of Sentenced Persons 13.On 27 June 2014, the Applicant applied to be considered for transfer to Mexico to serve the remainder of her imprisonment term. The requested consideration fell to be conducted in accordance with the TSPO. This is because there is no bilateral agreement made between the HKSAR Government and the Government of the United Mexican States for the transfer of sentenced persons. 14.Ms Chan has helpfully made reference to the relevant provisions of the TSPO, which came into operation on 6 June 1997 and has continued in force since that date. 15.The long title of the TSPO identifies that it is an ordinance to make provision for the transfer between Hong Kong and places outside Hong Kong of persons detained in institutions by virtue of orders made by courts in the exercise of their criminal jurisdiction; and for matters incidental thereto or connected therewith. 16.For present purposes, the core material provisions of the TSPO are to be found in sections 3 and 4. They provide as follows:
17.Hence:
D. This Case and the Decision 18.As regards the case of the Applicant, the Putative Respondents refused to give the requisite consent under section 4(2)(e) of the TSPO. The refusal was on the basis that the Applicant would be eligible for conditional release under the law of Mexico, and such a consequence would not serve the legislative intent of the transfer arrangements for the continued enforcement of the remainder of the imprisonment of the transferred sentenced person in the receiving place. 19.Had there been any transfer arrangements, the term of the Applicant’s sentence would need to be calculated. Ms Chan has provided a letter dated 7 March 2019 from the Consul-General of Mexico to the Security Bureau, which enclosed a copy of a letter dated 31 January 2009 (sic, but apparently a typographical error for 2019) from the Office of the Prosecutor General in Mexico City. The letter identifies that, under the National Law of Criminal Penalties in Mexico as updated, a sentenced person would be entitled to apply for conditional release, with or without electronic monitoring supervision, if that person has served 50% or 70% respectively of the penalty imposed on that person. It was noted that if the Judge on Penalty Enforcement determines that the Applicant is eligible for the relevant benefit, the closest date to request her release under the Conditional Release modality would be 8 June 2021, hypothetically considering that she would be transferred on 30 March 2019. The final calculation would be established by a Mexican Judge on Penalty Enforcement, which is the authority with jurisdiction to guarantee that the final sentence is properly enforced regardless of the claim preclusion, as well as to determine if any benefit is applicable to the sentenced person. 20.The Putative Respondents refused to give consent for the purpose of section 4(2)(e) of the TSPO, after taking into account:
21.The Decision was notified to the Applicant by the Security Bureau’s letter dated 23 March 2020, which expressly referred to those two reasons. The Decision also noted that the Security Bureau would inform the Consulate General of Mexico in Hong Kong of the Decision, and ceased to process the application further. 22.I also take it that there has been no further follow-up from the Consulate General of Mexico. E. The Intended Challenge 23.The Applicant’s Form 86 identified that the grounds of the application are to be found in her affidavit/affirmation. Those grounds are under the general point that the Applicant considers the Decision to be palpably unjust and unfair, in that:
24.I shall refer to these as “Ground 1” and “Ground 2” respectively. F. The Response 25.As to Ground 1, Ms Chan submits that the Applicant has adduced no evidence in support of the allegation that a majority of sentenced persons who were sentenced for dangerous drug offences succeeded in their transfer applications processed in accordance with the TSPO. In any event, the transfer application of the Applicant was processed on its individual case basis, as are all similar cases which have no restrictions against transfer of a sentenced person to a receiving place with which there is no bilateral agreement. 26.Ms Chan refers also to the Applicant’s knowledge of the conditions of her transfer application, including that the Applicant had been made aware that the transfer arrangement, if any, would be made for her to continue to serve the balance of her sentence in Mexico and would not result in early release of her upon transfer to Mexico. Ms Chan referred to the Applicant’s application for transfer dated 27 June 2014 and her written consent dated 15 November 2017. 27.In the former, the Applicant stated (with Ms Chan’s emphasis):
28.In the latter, the Applicant acknowledged:
29.Ms Chan also refers to the Court of Appeal’s decision in Re Yung Kwan Lee [1999] 3 HKLRD 316, which concerned an inward warrant, but which decision appeared to emphasise the transfer being for service of the balance of any sentence. 30.As to Ground 2, Ms Chan suggests that the allegation made by the Applicant is misguided, because:
31.Ms Chan also makes the broad submission that a margin of appreciation should be afforded to the decision-maker in this case, and the Court should not intervene – I think Ms Chan must mean should not intervene lightly – in the matter of the transfer of prisoners into Hong Kong or to a place outside Hong Kong, which should be within the expertise of the Security Bureau. She points to the fact that such transfers involve foreign affairs and assumption of international obligations of the HKSARG under bilateral arrangements made with ascending close or receiving place on a case-by-case basis in accordance with the provisions of the TSPO. 32.Ms Chan points in particular to the provisions of the TSPO, by which:
33.In any event, Ms Chan submits that the Decision and its reasoning are lawful and reasonable in the public law sense. G. Consideration and Result 34.I have considered and weighed the matters advanced by the Applicant, and by Ms Chan in response. 35.In the circumstances of the nature of the arrangements relating to transfer of sentenced persons, it seems to me correct that I should afford a margin of appreciation to the decision-maker. 36.But, in any event, the Decision was plainly lawful, as being within the powers granted under the TSPO. 37.Further, there was no arguable procedural irregularity, when the Applicant’s application for consideration of transfer was made on a fully informed basis, the Applicant had made express acknowledgements and consents, and appropriate enquiries were made of the Mexican authorities to obtain information relevant to the decision to be made, and all to facilitate a proper consideration of that decision. 38.The reasons for the Decision identified in the Decision letter are relevant considerations to have been taken into account, and to be given such weight as the decision-maker thought appropriate. There is no arguable suggestion that the making of the Decision was not dealt with on its own individual merits by reference to the Applicant’s individual circumstances. Comparison with other cases, even were there to have been evidence about those other cases, is unlikely to be of any real assistance when each case must be dealt with on its own individual circumstances and merits. 39.Further, early or conditional release under the PRSO seems to me to be a different regime, with a different legislative intent, and potentially rather different balances and imperatives, than under the TSPO. 40.Having carefully reviewed matters, it seems to me that there are no reasonably arguable grounds of intended review with any realistic prospect of success as might properly found the grant of leave to apply for judicial review. 41.In those circumstances, the Applicant’s application for leave to apply for judicial review is dismissed. 42.I make no order as to costs.
The applicant, acting in person Ms Jess Chan, Senior Assistant Law Officer (Civil Law)(Ag.), of the Department of Justice, for the putative respondents | |||||||||||||||||||||
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