HKSAR v. Herico Elsa Valencia

CACC 431/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 431 OF 2012

(ON APPEAL FROM HCCC NO. 203 OF 2012)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgement of the Court):

1.On 11 October 2012, the applicant was convicted, after trial before Line J and a jury, of one count of trafficking in a dangerous drug, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134) and she was sentenced to a term of 23 years’ imprisonment.

2.She now applies for leave to appeal against conviction and sentence.

The facts

3.The applicant, a national of the Philippines, arrived in Hong Kong on a flight from Kuala Lumpur on 19 November 2011.  She was due to travel to Guangzhou the following day.  However, she was stopped at Hong Kong International Airport and subjected to a random check by a Customs and Excise officer.  She was found to be in possession of a black suitcase which she had checked in and brought with her from Malaysia.  A search of the suitcase led to the discovery of a false compartment in the bottom of the suitcase in which was contained 2.36 kilograms of a mixture which contained 1.07 kilograms of heroin hydrochloride.  The drugs had a street value of $1.895 million.  She was duly arrested and charged with the trafficking offence.

The appellant’s case at trial

4.The applicant, who was then legally aided, was represented by solicitors and counsel at her trial.

5.The only issue at trial was one of knowledge: did the applicant know that she was carrying dangerous drugs?  She gave evidence in her own defence.  She maintained that she did not know she was carrying the drugs.  Her evidence was that she had been in Kuala Lumpur on a business trip to meet potential buyers and that she had been given the suitcase by a man she had seen about her hotel named Amid.  She did not know his telephone number or address.  Amid had given her the suitcase to help her carry items she had purchased while shopping in Kuala Lumpur.  The suitcase was empty when she opened it in her room and she noticed nothing unusual about it.

6.The applicant’s brother was also called as a witness in support of her defence.  He gave evidence as to the applicant’s shop business in the Philippines.

7.The jury did not believe the applicant’s story and was unanimous in convicting her.

The appeal

8.By notice of application dated 26 October 2012, the applicant seeks leave to appeal against her conviction and sentence.  In her hand-written grounds appended to her notice of application, the applicant expressed the wish to appeal because she was “not satisfied” and claimed she was “falsely convicted” but did not expand on why this was so.

9.She is no longer represented, legal aid having been refused on 18 January 2013.

10.In a letter to the court dated 13 March 2013, the applicant wrote that her ground of appeal was “based on unprofessional conduct of legal aid representative”. She appears to complain that her “solicitor and lawyer from legal aid assigned [to] my case” did not give sufficient time to her case.  She mentions that, during her trial, the Judge asked her lawyers why they were not “prepared for the case and called for the Legal Aid Director “for questioning”.

11.In support of her application for leave to appeal, the applicant made an affirmation dated 5 April 2013 to which she exhibited a letter to the court dated 2 April 2013 particularising her complaints of unprofessional conduct on the part of her solicitor and counsel.

12.The first point she makes is that they did not devote sufficient time to her case, claiming to be very busy.  The applicant lists five visits by her solicitor and counsel to her in Tai Lam Centre for Women (TLCW) in 2012: these took place on 22 and 29 August, 19 September, and 3 and 6 October 2012; each visit lasted 30 minutes so the total time of the visits was 2½ hours.  She attributes the reason for the shortness of the visits to her lawyers’ failure to book the legal visit room at TLCW.  The applicant also repeats the point regarding the Judge’s inquiry of her lawyers as to why they were not prepared for her case.

13.Next, the applicant makes the point that her fingerprints were not found on the drugs, that no information was obtained from her laptop computer or mobile phone and that she had never committed any crime in Hong Kong.  Further, the applicant asserts that the Customs officer gave evidence to the effect that the packaging was such as to make the drugs difficult to find and that she was a victim of a man she trusted and did not know to be a bad person.

14.At the hearing before us today, the applicant has repeated her complaint as to the lack of time spent by her legal representatives on her case.

Evidence of the applicant’s legal representatives

15.At the request of the Registrar of the High Court, the applicant’s former counsel, Mr John Hemmings, and solicitor, Mr Gabriel H.T. Leung Jackson-Lipkin, filed affirmations dated 26 and 23 April 2013 respectively in respect of the ground of appeal based on the competence of her legal representatives.

16.The applicant’s counsel’s evidence is that he was assigned to the applicant’s case on 14 August 2012 and that he visited the applicant in TLCW prior to trial on three occasions in 2012, namely 28 August, 19 September and 3 October.  On each of those occasions he spent one hour with her, that being the maximum permitted time allowed by the arrangements at the prison.  He states that most of the time was spent discussing the defence case, since the prosecution evidence was largely or entirely undisputed.  He states that an adjournment was sought from the Judge on the first day of trial because, the day before, the applicant’s brother provided a large bundle of documents which might be relevant.  He deposes to the belief that the time between being instructed and trial was adequate for case preparation and it was only the provision of late documents that necessitated the request for an adjournment.

17.Her counsel also states that the Judge inquired why counsel was not ready and he explained that he had only just been provided with the new material and needed to study it and confer with the applicant.  A representative of the Director of Legal Aid (DLA) was asked to attend to explain why counsel had not been assigned before 14 August 2012.  After hearing from the DLA’s representative, the Judge granted the adjournment.  Following the grant of the adjournment, counsel visited the applicant at TLCW on 6 October 2012 and spent nearly two hours in conference with her.  He also visited the applicant for an hour in the High Court cells on 8 October 2012. He deposes to the belief that every aspect of the prosecution and defence case was discussed exhaustively with the applicant during the conferences.

18.The applicant’s solicitor’s evidence is supportive of that of her counsel.  In addition to the conferences with counsel, her solicitor explains that he also went to see her on 22 August 2012 at TLCW and on 30 August, 4 October and 5 October 2012 in the High Court cells. He denies telling her he was busy.  Her solicitor states that written confirmation was obtained from her that she did not challenge the admissibility of her cautioned interview and that her defence was lack of knowledge of the drugs.  He says that on 3 October 2012 she provided handwritten instructions in response to advice given by counsel on an earlier visit.  He agrees with the applicant’s description of the procedures for booking an interview room at TLCW and that he was not able to book most of the time either because the rooms were full or calls to TLCW went unanswered.

19.The solicitor’s evidence of the reason for the adjournment corresponds with that of counsel and this is supported by his exhibited attendance note of proceedings in court on the first day of the trial.  He maintains that he and counsel had adequately discussed and advised the applicant on the question of how, if her defence was true, Amid was supposed to recover the drugs after she had carried them in the suitcase.

Discussion of the grounds of appeal against conviction

20.As to the ground of appeal based on the alleged incompetence of her legal representatives, we are satisfied that there is no substance in this complaint.

21.It is neither possible nor appropriate for this court to know the full details of the conversations between the applicant and her solicitor and counsel at TLCW and in the High Court cells.  However, it is common ground that conferences between the applicant and her lawyers took place on five occasions at TLCW.  There is also evidence that the applicant met on one further occasion with counsel in the High Court cells and three further occasions with her solicitor there.  The exact timings of those conferences and meetings is a matter of estimation but the case was straight forward and we are satisfied that there was adequate opportunity for the applicant to provide full instructions to her lawyers of any defence she might have to the trafficking charge.

22.Of greater importance, in our view, is the fact that there is no other defence of any substance suggested in the applicant’s materials in support of this appeal.  The only defence raised at trial was knowledge and this was addressed by the applicant in her evidence, which the jury did not accept.  In the circumstances, we are satisfied that to lay the blame for her conviction at the door of her legal representatives in the absence of any allegation that they failed to run any other defence is an empty complaint.

23.The applicant’s perception of the exchange between the Judge and her counsel on the first day of trial and the resulting adjournment might have led her to apprehend some unpreparedness on the part of her lawyers but there is no reason to doubt the evidence of her counsel and solicitor that the adjournment was the result of late documents provided by the applicant’s brother on the eve of the trial.  The Judge’s concern about the timing of counsel’s assignment by the DLA is another issue and therefore does not provide a sound basis for calling into question the competence of her legal representation at trial.

24.We are also satisfied that there is no substance in the other complaints raised by the applicant in her grounds of appeal.

25.The lack of fingerprint evidence was a matter recorded in the admitted facts.  Similarly, her clear record was an admitted fact.  The Judge properly directed the jury on the relevance of the applicant’s good character and reminded the jury that the exhibits officer’s evidence was that the concealment of the drugs was “professional and sophisticated”.  The Judge properly summarised the applicant’s evidence of her encounter with the individual, Amid, and how, on her case, she came to get the suitcase from him. In our judgment, the jury’s decision to reject the applicant’s evidence on the critical issue of her knowledge that the suitcase contained dangerous drugs is one which was plainly open to it.

26.Accordingly, since we are not persuaded that there is any substance in the grounds of appeal advanced and we are satisfied that the conviction was neither unsafe nor unsatisfactory, we dismiss the application for leave to appeal against conviction.

The appeal against sentence

27.The Judge sentenced the applicant on the basis of the well-established guidelines in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197.  He took a preliminary starting point of 21 years based on the quantity of drugs and this was well within the relevant guideline range for the quantity in question.  He added 2 years in respect of the international element as an aggravating factor, which was an entirely orthodox approach.

28.The applicant has not advanced any basis for saying that the sentence was wrong in principle or manifestly excessive or otherwise liable to interference by this court and we do not consider that there is any proper basis for this court to reduce the applicant’s sentence.

29.Accordingly, we dismiss the application for leave to appeal against sentence.

Mr Edmond Lee SADPP, of the Department of Justice, for the Respondent

The Applicant, in person