HKSAR v. Castano Arango Jose Reinel

CACC174/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 174 OF 2014

(ON APPEAL FROM HCCC NO. 293 OF 2013)

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JUDGMENT

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Hon McWalters JA (giving the judgment of the Court):

Introduction

1.The applicant, a national of Columbia, seeks leave to appeal out of time against a sentence of 15 years and 6 months’ imprisonment imposed on him on 4 September 2013 by Judge Beeson, following his committal for sentence to the High Court after his pleas of guilty in the Magistracy to 2 counts of unlawfully trafficking in a dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and 1 count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance.

2.Count 1 alleged that on 20 October 2012 at the junction of Third Street and Western Street, Sai Ying Pun, Hong Kong the applicant unlawfully trafficked in 599.01 grammes of a powder containing 413.97 grammes of cocaine hydrochloride.  Count 2 alleged that on the same day at Flat B, 19^th Floor, Block 2, Yue Sun Mansion, Nos. 89-99 Third Street, Sai Ying Pun the applicant unlawfully trafficked in 1,210.86 grammes of a mixture containing 880.22 grammes of cocaine hydrochloride.  Count 3 alleged that on the same day and at the same address particularized in Count 2 the applicant had in his possession 9.57 grammes of cannabis in herbal form.

3.In sentencing the applicant the judge aggregated the drugs particularized in charges 1 and 2, a total of 1,294.19 grammes of cocaine hydrochloride, and imposed in respect of each count a sentence of 15 years 4 months’ imprisonment.  In respect of Count 3 the judge imposed a sentence of 2 months’ imprisonment which she ordered should be served consecutively to the sentence on Counts 1 and 2, thereby arriving at a total sentence of 15 years 6 months’ imprisonment.

The Background to the Offences

4.The applicant was intercepted by the police officers on the street whilst he was trying to hire a taxi.  When police officers searched a paper bag he was carrying they found inside it a plastic bag containing the dangerous drugs the subject matter of Count 1.  These drugs had an estimated retail value of $596,613.96.  Under caution, the applicant stated that the bag contained cocaine and he was going to give it to a friend.  The applicant was then taken to the premises particularized in Count 2 and when the police conducted a search of these premises they found in the living room the dangerous drugs the subject matter of Counts 2 and 3.  The cocaine in Count 2 had an estimated value of $1,206,016.56.

5.In addition, the police found items including a hydraulic jet, a metal plate, a metal cylinder with a metal rod, a metal sieve, two pairs of scissors, two electronic scales and two pieces of metal, a bucket, two cooking pans and a brush, all containing traces of cocaine. Police also found two dehumidifiers, a notebook marked with transaction records and two boxes of resealable plastic bags.  Cash of HK$23,000 was found in the living room and cash of HK$106,840 and US$3,200 were found in a bedroom. 

6.In a subsequent video recorded interview, the applicant admitted that he knew the dangerous drug that was seized from him on the street was cocaine and he was planning to deliver it to a customer.  He said he received from his boss HK$1,500 for each delivery with a monthly salary of HK$20,000.  He used the hydraulic jet to press the cocaine into cylindrical shapes. As to the cannabis that was seized, he admitted that it was for his own consumption.

7.The applicant arrived in Hong Kong on 17 February 2012 and was permitted to remain until 17 May 2012.  He rented the premises for a year from 24 March 2012 at a monthly rent of $8,800.

The Reasons for Sentence

8.In her Reasons for Sentence, the judge noted that the applicant is aged 33 and is married with two sons.  He had a clear record and was the sole breadwinner for his family in Columbia.  The applicant suffered from a number of degenerative diseases affecting his spine, but his main problem appeared to be obesity which exacerbated the conditions he already had.  The judge noted that the applicant had claimed to use the cannabis for relief of the pain that he suffered from his medical conditions.

9.The judge also noted that the applicant had a clear intention to overstay as he had rented the premises in which he resided for a period of 12 months but he had been permitted to remain only until 17 May 2012.

10.Having considered HKSAR v Abdallah [2009] HKLRD 437, the judge said that the quantity of narcotic in the present case came into the category of 23 years to 26 years range.  The judge said that for the purpose of sentencing the applicant on Counts 1 and 2 the appropriate course was to aggregate the drugs in both counts and on that basis the total narcotic quantity was 1,294.19 grammes.  She adopted a starting point of 23 years which she discounted by one-third for the applicant’s guilty plea.  She then sentenced the applicant on each of Counts 1 and 2 to 15 years and 4 months’ imprisonment and ordered that both sentences were to run concurrently with each other.  This approach reflected the reality of the situation that on the day of the offences the applicant was in possession of all of the drugs; those on his person and those in his flat.

11.In respect of Count 3, the judge said that the sentence was a matter for her discretion.  She took a starting point of 3 months’ imprisonment and having discounted it by one-third, she imposed 2 months’ imprisonment on the applicant which she ordered to run consecutively to the sentences on Counts 1 and 2, making a total of 15 years and 6 months’ imprisonment.

Grounds of Appeal

12.On 22 May 2014, which was around 8½ months after the sentences were imposed, the applicant filed with the court an application for leave to appeal against both conviction and sentence out of time by way of Form XI of the Criminal Procedure Rules.  On 27 June 2014, his application for leave to appeal against conviction out of time was marked dismissed upon his filing a Notice of Abandonment. 

13.In support of his application for an extension of time in which to appeal the applicant filed an affidavit referring to assistance that he had rendered to the authorities after he was sentenced.  In view of this development and without any objection from the respondent we grant the applicant an extension of time in which to apply for leave to appeal.   

14.In his amended perfected grounds of appeal the applicant’s counsel, Mr David Boyton, set out two grounds of appeal.  The first relies on the assistance the applicant gave to the authorities since being sentenced.  Mr Boyton does not complain about the judges starting point of 23 years’ imprisonment.  He just wants a larger discount to reflect the applicant’s post-sentencing assistance to the authorities.  He relies on Z v HKSAR (2007) 10 HKCFAR 183 and HKSAR v Y [2005] 3 HKC 337 as support for his submission that a total discount in excess of 40% is appropriate. 

15.The second ground of appeal asserts the judge erred in ordering the sentence for the possession of cannabis charge that is Count 3 to be served consecutively to that for the trafficking charges.  He submits that if the amount of cannabis was treated as cocaine and added to the cocaine in the trafficking charges, it would have made no difference to sentence.  In support of his submission Mr Boyton relied on HKSAR v Ip Yuet Ho [2008] 6 HKC 35 and HKSAR v Or Wai Tong CACC250/2009.

Discussion

16.In respect of cocaine, the tariff for cocaine above 600 grammes and the relevant sentencing bands as stated in Abdallah are as follows:

600 to 1200 grammes	-	20 to 23 years
1200 to 4000 grammes	-	23 to 26 years

17.The respondent does not contest the applicant’s claim he has provided useful assistance to the authorities or that by virtue of that assistance he is entitled to a further reduction of sentence which she says should be assessed at 40%.  It is apparent to us on the papers that the assistance rendered by the applicant resulted in the successful prosecution of a person for importing a significant quantity of drugs and in our view the sentence for Counts 1 and 2 should be 13 years 1 month imprisonment. 

18.Mr Boyton regards the key area of dispute on this appeal as being whether the judge erred in ordering the sentence for Count 3 to be served consecutively to the sentences for Counts 1 and 2.  In respect of the 2^nd ground of appeal, the respondent argues that while the quantity of the cannabis in Count 3 was not substantial, it was in nature totally different from cocaine, the drug in which he was trafficking, and so the judge was entitled to view Count 3 as distinct and separate from Counts 1 and 2.

19.Mr Boyton is correct in identifying the key contested issue in the appeal but before we decide what order should have been made in respect of the sentence for Count 3 vis-a-vis the sentences for Counts 1 and 2 we have to first determine the appropriate sentence for Count 3.  Mr Boyton referred to Attorney General v Tuen Shui Ming [1995] 2 HKC 798 in which the Court of Appeal laid down the tariff for trafficking in cannabis resin.  The effect of that decision, Mr Boyton argues, is that had the applicant faced a charge of trafficking in 9.57 grammes of cannabis in herbal form he would have faced a possible starting point for sentence of no more than 4 months’ imprisonment.[1] A conviction for simple possession should attract a significantly lower sentence.

20.There are no Court of Appeal judgments of which we are aware that lay down any sentencing guidelines for simple possession of herbal cannabis. However we note that in HKSAR v Touray Edrisa & ors CACC124/2010, unreported, 11 August 2011 another division of this court was dealing with a charge of possession of 0.6 grammes of herbal cannabis.  The court referred to the fact that the magistrate had contemplated imposing a fine for the offence and commented that she had no doubt done so “… because a modest fine was the appropriate sentence for that offence.”[2]  In that case the Court of Appeal ordered that the 2^nd applicant pay a fine of $2,000. 

21.Here the amount of cannabis is greater and warrants a higher fine and we adjudge an amount of $10,000 is appropriate with 2 weeks’ imprisonment in default of payment.

22.In the Touray Edrisa case the Court of Appeal was faced with a similar situation to this applicant; namely a defendant convicted both of trafficking in a substantial quantity of dangerous drugs (in that case it was over 30 kg of herbal cannabis) and having in his possession a small quantity of herbal cannabis for his own consumption.  Lunn J (as then was), in giving the judgment of the Court said at paragraph 61:

“In any event, the judge fell into error in determining that, given the offence of unlawful possession was different in nature to that of unlawful trafficking in a dangerous drug, their separate treatment required a part of the sentence imposed for unlawful possession of the dangerous drug to be consecutive to that imposed in respect of the unlawful trafficking. It is to be noted that in cases of multiple unlawful trafficking in dangerous drugs, that are connected closely in time and factually, this Court has said that it is appropriate for the sentencing judge to have regard to the overall quantity of the narcotic (see HKSAR v Chan Pui Chi [1999] 2 HKLRD 830). In cases where there is a great disparity in the volume of the narcotic between one offence and another it will be appropriate to impose concurrent sentences.”[3]

23.For the same reasons we order that in respect of this applicant the in-default period of imprisonment should be served concurrently with the terms of imprisonment imposed for Counts 1 and 2.

Conclusion

24.For these reasons we allow the application for leave to appeal and treating the application as the hearing of the appeal we allow the appeal and quash the sentences of the judge and, in substitution for them, impose the following sentences on the applicant:

Counts 1 and 2 :	13 years and 1 month imprisonment on each count to be served concurrently with one another.
Count 3 :	A fine of $10,000 and in default of payment a period of 2 weeks’ imprisonment to be served concurrently with the sentences imposed on Counts 1 and 2.

Ms Jasmine Ching SPP, of the Department of Justice, for the respondent

Mr David Boyton, instructed by Francis Kong & Co, for the applicant

[1] For an example of such an approach to calculation of sentence, see HKSAR v Chor Lui [2001] 3 HKLRD 95.

[2] HKSAR v Touray Edrisa & ors CACC124/2010 at paragraph 60.

[3] A similar stance was taken by a different division of the Court of Appeal in HKSAR v Or Wai Tong CACC250/2009, unreported, 3 December 2009 and in HKSAR v Ip Yuet Ho [2008] 6 HKC 35.