HKSAR v. LOPEZ GARCIA, MANUEL ORLANDO

CACC 264 /2019

[2020] HKCA 632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 264 OF 2019

(ON APPEAL FROM HCCC NO 140 OF 2016)

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J U D G M E N T

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1.  On 14 July 2017, the applicant pleaded guilty before Zervos J (“the judge”), as he then was, to a single count of unlawfully trafficking in a dangerous drug, namely, 1.71 kilogrammes of a powder containing 1.17 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Following mitigation by counsel on the applicant’s behalf, the judge sentenced him on the same day to 14½ years’ imprisonment.

2.  The applicant had been committed to the High Court for trial on 18 March 2016.  On 20 April 2016, the case was listed for pre-trial review on 11 May 2017 and for trial on 14 July 2017.  However, at a mention hearing on 28 June 2017, the applicant indicated for the first time that he intended to plead guilty to the charge.  Accordingly, on 14 July 2017, the applicant duly pleaded guilty and was sentenced by the judge.

3.  Having filed a Notice of application for leave to appeal (Form XI) on 4 September 2019 in respect of sentence, he now applies for leave to appeal against sentence out of time.  By September 2019, the application was more than 2 years out of time.

The facts admitted by the applicant

4.  On 26 August 2015, the applicant, who is a Mexican national of Colombian origin, arrived at Hong Kong International Airport on a flight from Dubai in the United Arab Emirates.  He had begun his journey on 19 August 2015 in Mexico City.  From there, he flew to Santiago in Chile before flying to Rio de Janeiro in Brazil and then on to São Paulo, also in Brazil, where he was given a briefcase (“the briefcase”) to bring to Hong Kong via Dubai.  On his arrival in Hong Kong, he was intercepted by Custom Officers for Customs clearance.  A search of the briefcase revealed a total of five soaked cotton pads in five concealed compartments of the briefcase.  He was cautioned, whereupon he immediately attempted to flee.  After a short struggle, he was finally subdued and arrested.  He remained silent under caution.

5.  The five soaked cotton pads were later examined by the Government Chemist.  After extraction, they produced the quantity of cocaine particularised in the count.  The street value of the drug at the time was about HK$1,749,330.

6.  The applicant agreed to participate in a controlled delivery operation after he had revealed, in the presence of an interpreter, that someone would collect the briefcase from him at Kowloon Harbourfront Hotel.  However, although the applicant received a number of telephone calls at the hotel, nobody arrived to collect the briefcase and the operation was abandoned.

7.  In a subsequent video recorded interview under caution, the applicant said, inter alia, that because of a failed business venture he was involved with, he owed someone money.  Since he could not repay the loan, the money lender, through a middleman, had threatened to kill him and his family members.  However, he was told that the debt could be cleared if he agreed to take a trip to Hong Kong and take with him a briefcase.  He did not report the threat to the authorities because he was afraid.  Whilst he accepted that neither he nor his family members had actually been harmed, they had nevertheless suffered psychological distress.  In respect of his trip out of Mexico, the applicant said that the person who lent him the money had also arranged the aeroplane tickets for him.  During his stay in a hotel in São Paulo, someone had delivered the briefcase to him.  The applicant explained that he became scared when he was intercepted by Customs Officers and had therefore tried to flee.  He accepted that he could imagine the briefcase contained something illegal because of the circumstances in which it came into his possession.

8.  In pleading guilty, the applicant admitted that he knew he was in possession of dangerous drugs before he was intercepted by Custom Officers at Hong Kong International Airport.

Mitigation

9.  The mitigation put forward by counsel on behalf of the applicant at trial comprised both written and oral submissions.  A mitigation bundle was furnished to the court containing, inter alia, a psychiatric report on the applicant prepared by Dr Barry Connell; an expert report on a criminal gang known as Los Zetas prepared by Dr Hal Brands; copies of the death certificates of the applicant’s father and mother; and mitigation letters from two of the applicant’s business friends and from the applicant’s two sisters, as well as an affidavit from Father John Wotherspoon.

10.  The applicant was committed for trial on 18 March 2016. Although he did not plead guilty until the first day of the trial, it was submitted that the applicant was entitled to a full one-third discount for his plea; the plea having been entered before the publication of the Court of Appeal’s judgment in HKSAR v Ngo Van Nam^[1].

11.  The judge was further urged to give an additional discount for taking part in a controlled delivery operation; for participating in Father Wotherspoon’s ‘campaign’; for providing information to the Mexican authorities; and for his personal background.

12.  Defence counsel submitted, and prosecuting counsel accepted^[2], that the fact that the controlled delivery operation was unsuccessful was not the fault of the applicant.  The letter written by the applicant to Father Wotherspoon had been published on a website set up for South America. Furthermore, the applicant had provided details of the person whom he believed was ultimately responsible for his involvement in the offence to the Mexican authorities, through the Mexican Consulate in Hong Kong.

13.  In relation to his personal background, the applicant had a clear record in both Hong Kong and Mexico.  At the time of sentence, he was 59 years of age and the father of two adult sons.  He had been born in Colombia into in a reasonably affluent family.  Following his father’s death at the hands of gangsters, the applicant moved to Mexico with his mother and started a business distributing encyclopaedias.  When the business began to fail, he took a loan from a named individual, whom the applicant believed was connected to a violent drug trafficking gang in Mexico called Los Zetas. However, his debt worsened and the individual concerned began to make threats to the applicant and his family and eventually enticed him into trafficking dangerous drugs in order to pay off his debt.  On 5 January 2016, the applicant’s mother died of a heart attack, which it was suggested was partly due to the threat posed by Los Zetas.  The applicant’s counsel referred to the expert report prepared by Dr Brands, which provided information about the operation of this organisation in Mexico.

14.  It was submitted that the applicant’s engagement in drug trafficking drug was out of character.  A psychiatric report of Dr Connell was produced suggesting that the applicant had been suffering from an adjustment disorder at the time he committed the offence.  Dr Connell also considered that the circumstances of his father’s death and his desire to protect his family had likely affected his judgement at the material time.

15.  The applicant’s counsel accepted that the quantity of dangerous drugs in the present case would attract a starting point of about 22 years’ imprisonment.  In respect of the enhancement for the international element, the judge was invited not to impose an enhancement greater than 2 years’ imprisonment.

The judge’s sentence

16.  The judge bore in mind the matters that had been advanced on the applicant’s behalf in mitigation^[3]. He also noted various letters the applicant had written to the court explaining the circumstances and expressing his regret and remorse.

17.  Following the sentencing guidelines in R v Lau Tak Ming & Anor^[4] and HKSAR v Abdallah^[5], the judge adopted a starting point of 22 years’ imprisonment in respect of a narcotic quantity of 1.17 kilogrammes of cocaine.  In accordance with Abdallah and Chung Pin Kun^[6], the judge then enhanced the starting point by 2 years’ imprisonment for the international element, thus making a notional sentence after trial of 24 years’ imprisonment.

18.  Since the applicant was not caught by the new sentencing regime established in Ngo Van Nam, the judge discounted the sentence of 24 years’ imprisonment by a full one-third for his guilty plea, to 16 years’ imprisonment.  The judge further accepted that the failure of the controlled delivery operation was not the fault of the applicant and gave him an extra 4% discount for the assistance he had rendered to the authorities; thus making an overall discount of 37.3%^[7], and thereby reducing the sentence to 15 years’ imprisonment.

19.  Accepting the testimonials adduced on the applicant’s behalf, and recognising his positive contribution in dissuading others from participating in the drugs trade and that he had supplied information to the Mexican authorities, and considering the other matters advanced in mitigation, the judge further discounted the sentence by 6 months on top of the 37.3% discount^[8]. The ultimate sentence was 14½ years’ imprisonment.

The reasons for delay in applying for leave to appeal

20.  In his affirmation of 4 September 2019, attached to his Form XI, the applicant explained that he had applied for leave to appeal out of time because, although his application for transfer to Colombia to serve the remainder of his sentence had been approved by the Security Bureau in Hong Kong, the application had been refused by the Colombian government.  Before me today, the applicant has explained that he was informed by the Colombian Consulate that he could not appeal and make application for transfer to his country of origin to serve the remainder of his sentence at the same time.  Whilst I can perhaps understand that a Consulate might not want to set in motion an application for transfer, which would be a complex application involving two sovereign governments, and which might be redundant in the event of a successful appeal, I do not understand why an applicant cannot appeal and have the matter resolved as a discrete step before making an application for transfer.  Be that as it may, the applicant says that he understood the processes were mutually exclusive.

The applicant’s grounds of appeal

21.  The applicant’s grounds of appeal as set out in his Form XI and his letter of submission to the court of 2 January 2020 can be summarised as follows.  Firstly, the applicant claims his trial counsel did not mention, and the judge did not recognise, that he was a victim of duress, deception and human trafficking of the criminal cartel Los Zetas, and that his mother’s death was caused by that organisation’s harassment of the family in Mexico.  The applicant asks that consideration be given to the two reports prepared respectively by Dr Connell and Dr Brands, the circumstances of his mother’s death and the investigation by the Mexican authorities.

22.  Secondly, the applicant points to the first instance decision in HKSAR v Yances Rodriguez Jean Paul^[9], where the quantity of narcotic was said to be similar to his, yet the starting point adopted by the sentencing judge was 1 year less, as was the enhancement for the international element.  The applicant further cited three other first instances cases, where the scale of the offence was said to be similar to his, but the enhancement only 1 year’s imprisonment.

23.  Thirdly, the applicant refers to eight foreigners whose prosecution for trafficking in dangerous drugs was not proceeded with in 2016, allegedly on the ground that they were victims of criminal cartels using them to bring dangerous drugs into Hong Kong.

The respondent’s submission

24.  By reference to HKSAR v Medina & Anor^[10], Mr Tsui, on behalf of the respondent, submits the reason for the applicant’s late application for leave to appeal does not constitute a good reason for the delay.

25.  He submits that during mitigation, counsel then acting on his behalf supplied a great deal of information, much of it in written form, concerning the applicant’s personal circumstances, including his good character, the reports of Dr Connell and Dr Brands and the death certificate of the applicant’s mother.  The applicant’s assertion that the judge did not consider the expert reports is therefore misconceived: indeed, the judge specifically referred to them in sentencing[11]. There is nothing new, therefore, in the applicant’s submissions today which had been fully put before the court during sentencing.  Further, the respondent submits that there is nothing special about the applicant’s personal circumstances warranting any further discount.

26.  Following the guidelines in Pedro Nel Rojas^[12] and Lau Tak Ming, the starting point in respect of trafficking in 1.17 kilogrammes of cocaine should, arithmetically, have been 22 years and 11 months’ imprisonment.  The starting point of 22 years’ imprisonment adopted by the judge was therefore less than the arithmetical application of guideline to quantity.  The enhancement of 2 years’ imprisonment in respect of a quantity of narcotic of more than 1 kilogramme also fell squarely within the principles in Abdallah.  Mr Tsui contends that the present case and that of Yances Rodriguez were not similar.  The quantity of narcotic in Yances Rodriguez was 904.6 grammes of cocaine, which was significantly less than 1.17 kilogrammes.  Moreover, the enhancement for the international element in Yances Rodriguez, in respect of a quantity that was less than 1 kilogramme of narcotic, was 18 months’ imprisonment.

27.  The respondent further submits that the cases of the foreign defendants cited by the applicant are not comparable.  They had all maintained that they were innocent, having been tricked by members of a drug syndicate into coming to Hong Kong with dangerous drugs secreted in their luggage.  They had never pleaded guilty to their respective charges and were released after the prosecution offered no evidence at their arraignment.  By contrast, the applicant had pleaded guilty to the charge and admitted that he knew he was in possession of dangerous drugs.  Moreover, the applicant was legally represented in the proceedings in the Court of First Instance.  He made his own voluntary and unequivocal decision to plead guilty.

28.  In view of the absence of any valid ground to justify the delay in lodging his application for leave to appeal, in circumstances where the sentence could not be said on a reasonably arguable basis to be wrong in principle or manifestly excessive, it was submitted by Mr Tsui that the present application for leave to appeal against sentence out of time should be refused.

Consideration

29.  The applicant should understand that the sentence passed upon him was, in the context of sentences generally for international drug trafficking, a generous one, albeit one within the judge’s discretion to pass.  First, the arithmetical starting point for sentence in respect of 1.17 kilogrammes of cocaine narcotic could have been, under the guidelines in Abdallah, 22 years and 11 months’ imprisonment; which, when duly enhanced for the international element involved in bringing more than a kilogramme of cocaine across the border into Hong Kong, would produce a notional sentence after trial of 24 years and 11 months’ imprisonment.

30.  Secondly, the applicant received an extra 4% discount for participating in a controlled delivery.  There is nothing insubstantial about that discount, which, whilst on the generous side in view of the fact that nothing was achieved and the operation was ultimately unsuccessful, was again within the discretion of the judge to give.

31.  Thirdly, the judge gave a further discount of 6 months for the applicant’s character, personal circumstances and his involvement, which would include how he came to be involved, in the case.  This was again, perhaps, on the generous side, for, as Mr Tsui points out, there was nothing particularly unusual about his personal circumstances which have not been said in other cases.  It is the experience of the courts that most defendants engage in international drug trafficking because of poverty or debt.

32.  Ultimately, the applicant received an overall discount of 39.6% from a notional sentence after trial, which was already lower than it could have been.  Many judges would have passed an ultimate sentence on these facts in the region of 15 to 16 years’ imprisonment, depending on the starting point adopted, and they could not have been criticised for doing so.

33.  The judge was an experienced judge and it is clear from the way he dealt with the matters put before him by way of mitigation, including the evidence of Dr Connell and Dr Brands, that it was a careful, considered and compassionate sentence.  As I have said, the judge had a discretion and it seems to me that it was exercised to the full on the applicant’s behalf, resulting in a sentence which was lower than it might otherwise have been.  Everything that is now urged upon me was fully placed before the judge at the sentencing hearing.

34.  I have no doubt that the applicant realises that the sentence he received was generous one, which might explain why it took him so long to file a notice of application to appeal.

35.  As for comparisons with other first instance decisions, the Court of Appeal has long stressed that comparisons with other cases on different facts, in different circumstances, by different judges are not useful.  What matters is whether the sentence under consideration is in accordance with the guidelines and proper sentencing principle.  I have looked at the additional case mentioned by the applicant this morning, namely HKSAR v Osorio Fabio Antonio[13], and it is clear that the judge at first instance adopted a starting point of 23 years’ imprisonment for 1.461 kilogrammes of cocaine with an enhancement for the international element of 2 years’ imprisonment.  I do not see how this first instance decision conceivably helps the applicant.  Ultimately the defendant there received a sentence of 16 years and 8 months’ imprisonment after pleading guilty, which was 2 years and 2 months more than the applicant.  As for the reference to the case of the eight foreign defendants, there is no comparison whatsoever with the applicant’s case.

36.  There are no reasonably arguable grounds of appeal in this case and the application for leave is seriously out of time. Accordingly, I decline to grant an extension of time within which to appeal sentence and I refuse leave to appeal.  I advise the applicant that he has the right to renew his application to the Court of Appeal but, in view of my remarks about what the sentence might have been had the discount accorded the applicant not been as generous as it was, I should also warn the applicant that one of the consequences of renewing his application may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending appeal, if it came to the view that there was no justification for the renewal of the application.  Furthermore, where an applicant is as seriously out of time as he is in this case, he should think very carefully before he renews his application, since he would be particularly at risk of a loss of time order, if the Court of Appeal were to come to the conclusion that the application should not have been renewed.

[1] HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

[2] AB, p 21I.

[3] AB, pp 13H and 17G.

[4] HKSAR v Lau Tak Ming & Anor [1990] 2 HKLR 370.

[5] HKSAR v Abdallah [2009] 2 HKLRD 437.

[6] HKSAR v Chung Ping Kun [2014] 6 HKC 106.

[7] AB, pp 14S-15C.

[8] AB, p 17D-H.

[9] HKSAR v Yances Rodriguez Jean Paul (unrep., HCCC 124/2016, 2 February 2018).

[10] HKSAR v Medina & Anor (unrep., CACC 296/2007, 7 January 2010).

[11] AB, p 13A-H.

[12] AG v Pedro Nel Rojas [1994] 1 HKC 342.

[13] HKSAR v Osorio Fabio Antonio HCCC 91/2015, 21 August 2015.