HKSAR v. AGUILLON RUIZ JAIME AND ANOTHER

HCCC 365/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 365 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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Background and the Facts

On 19 August 2016, both defendants were committed to the Court of First Instance for trial in respect of a total of three counts on the indictment. Count 1 was a count of conspiracy which alleged that D1 and D2 conspired together between a date or on about 20 September 2015 and the 23 October 2015, to unlawfully traffic in cocaine. Count 2 was the alternative count to Count 1 and it was the substantive offence of drug trafficking which alleged that D1 and D2 trafficked in a total of 249.95 grammes of cocaine in Hong Kong on 23 October 2015, at Room A, Flat D, 7th Floor, Phoenix Apartments, Causeway Bay, Hong Kong. Count 3 was a count of simple possession of cocaine which was laid against the 1st defendant only.

On 20 September 2016, both were given legal aid and a firm of solicitors were assigned to act on each’s behalf. On 28 September 2016, the case was listed for trial. On 1 June 2017, at the PTR questionnaire which was faxed to the court. D1 indicated that he would plead guilty to Count 2, subject to the prosecution accepting the plea in answer to the counts on the indictment.

At the pre-trial review on 5 June 2017, D2 indicated that there would be a section 16 application in respect of both Counts 1 and 2. D2 subsequently filed a notice to that effect, pursuant to the directions given by the court. The application was heard on 26 September 2017, the day before the scheduled commencement of D2’s trial on 27 September 2017.

In the afternoon of 26 September 2017, I gave a ruling ordering the discharge of D2 in respect of Count 1 but dismissing his application for discharge in respect of Count 2.

On 27 September 2017, when the arraignment of both defendants were due to take place, parties informed the court that there was a discussion being taken place between D2 and the Department of Justice. The parties therefore sought an adjournment until the 28 September 2017.

On 28 September 2017, counsel for D2 informed the court that he would plead guilty to Count 2. The case was then adjourned to this morning so that the consolidated Summary of Facts could be prepared by the prosecution in respect of the pleas of both defendants.

Now, the amended indictment before the court only contains two counts. Count 1 is the substantive offence of drug trafficking laid against both defendants whereas Count 2 is the simple possession count laid against D1 only. The reason is that the prosecution has dropped the conspiracy count, that is Count 1 on the original indictment, altogether after my section 16 ruling given in favour of D2.

This morning, both defendants pleaded guilty to Count 1 on the amended indictment and admitted the Summary of Facts. They were therefore each convicted of this count. As to Count 2, D1 pleaded not guilty to it and I ordered that it be left on the court file and not to be proceeded with without the leave of the court as sought by the prosecution. The facts admitted by both defendants in relation to the Count to which they pleaded guilty were basically these:

On 23 October 2015, while the police officers were taking part in a drugs operation, they noticed D1 and D2 returning to the flat of the premises particularised in the count at 2040 and 2119 hours respectively. At about 2135 hours, D1 opened the flat’s door from inside and the police then entered the premises to execute a search warrant. As a result, the drugs which were particularised in the count, that is a total of 348.07 grammes of a crystalline solid or a powder containing a total of 249.95 grammes of cocaine as well as packaging paraphernalia like electronic scales, empty boxes and bottles were found. Some were above the false ceiling in the toilet, some were in the sitting room and some were inside the drawer of the bedroom. Also found on the TV cabinet in the living room, inside a box, was cash HK$89,600 and US$244.

In respect of the properties seized from the defendants, keys to the premises were found on each of them. In addition, D1 was carrying two mobile phones and cash HK$2,717 whereas D2 was carrying a total of four mobile phones and cash HK$7,400. After their arrest, each of the defendants attended video-recorded interviews with the police. In D1’s video-recorded interview, he basically admitted that he knew of the presence of the drugs and that they were given to him for storage a week ago and that he was given a reward of $2,000. In D2’s video-recorded interview, he admitted having stayed in the flat together with D1 since early September 2015 and that nobody else stayed there during that period of time.

The estimated street value of the cocaine seized was about HK$370,000.

D1’s Background and Mitigation

D1 is now aged 37 and he was born in Mexico. He was educated up to secondary school level and was said to be a businessman living in Columbia prior to his arrest in Hong Kong.

Mr Sherry, for D1, told the court that D1 has been married for 20 years and he has got a child now aged 18. D1 was said to have worked in the garment industry and his purpose of coming to Hong Kong was said to be sourcing garments for resale back in Mexico and Columbia. In respect of the present offence, Mr Sherry told the court that D1 met a man in a bar in Tsim Sha Tsui who supplied him with the drugs for storage in exchange for a reward of $2,000. It was submitted that D1, because of the financial pressure he was facing, accepted the offer.

In mitigation, it was said that D1, having been arrested, has come to terms with the gravity of offence and is truly remorseful which is reflected by his guilty plea which he informed the court of at the PTR on 5 June 2017. In addition, Mr Sherry, for D1, provided to the court a letter written by D1 himself in which he expressed his remorse, a letter written by Father Wotherspoon in relation to an anti-drug campaign in which D1 and his family has offered assistance and a letter from the Action Foundation Humanitarian in Columbia which certified that D1 had participated as a volunteer in a project between March and July 2014.

Further, it was urged upon me that as this case was committed to the Court of First Instance before the Court of Appeal gave the judgment in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, D1 should be entitled to the full one-third reduction upon his plea.

On hearing that, I raised with Mr Sherry the fact that although the case was committed for trial on 19 August 2016, it was nevertheless listed for trial on 28 September 2016, that is, after the Court of Appeal judgment was given on 2 September 2016. In the circumstances, I told Mr Sherry that it would appear to me it was a conscious decision made by D1 to seek a trial despite the possible consequences of a lesser reduction of sentence given the decision in Ngo Van Nam, in particular, the paragraph concerning the application of the revised practice in paragraph 236 of the judgment which reads:

“The revised practice of affording discounts of sentence for pleas of guilty is to be applied only to those who in future, reach the stages in criminal proceedings identified in this judgment at which revised discounts of sentence for pleas of guilty are identified.”

I then indicated to Mr Sherry that D1 had, after the Court of Appeal judgment was handed down, reached the stage of listing and if he, at that time, indicated his guilty plea and confirmed at the listing hearing that a trial would not be necessary, he could still take the advantage of the full one-third reduction as he was committed before the Court of Appeal judgment was handed down. However, without any such indication of any guilty plea, the case was listed and the trial dates were fixed. In the circumstances, unless it be said that D1 was unaware of the implications of the Court of Appeal judgment at the time of the listing hearing, the court would take it as his conscious decision to seek a trial and not to take advantage of getting the full one-third reduction in sentence.

Mr Sherry then took further instructions and upon the court telling him that he did not need to divulge to the court any information which was covered by legal profession privilege unless there was a waiver from D1, Mr Sherry told the court that he himself was only briefed on 5 October 2016 and that D1 was not aware of the possible implications in sentence reduction in respect of listing the case for trial prior to meeting with him. As a result, Mr Sherry urged this court to afford a full one-third reduction to D1 in respect of the his guilty plea and to also grant him some reduction in respect of the assistance he and his family offered to Father Wotherspoon.

In this respect, the case of HKSAR v Echendu Chijioke Nick CACC 372/2016 (14 August 2017, unreported) was relied on and it was said that in that case, the sentencing judge had given a discount of 6 months for the assistance the defendant offered in the campaign and that the Court of Appeal had commented that:

“We would see nothing wrong with the judge’s arithmetic in assessing the starting point for sentence and its enhancement, nor could there be any compliant in the reduction the judge gave for the notional sentence after trial which was properly within her sentencing discretion.”

D2’s background and Mitigation

D2 was born in Columbia and he is now aged 41. He was said to be a businessman in Columbia and was educated up secondary level there. He has lived with his common law wife for 20 years and has got two sons who are now studying in the university. It was said that D2 was a retail merchant who sold casual shirts and trousers in Columbia, earning about US$3,000 to US$3,500 per month. He has not been in trouble there and has lived an ordinary and productive life according to Mr Tracy for the 2nd defendant.

In the late summer of 2015, D2 decided to come to Hong Kong and to go to China to see if he could source some clothing items for his business and as he was hoping that D1 whom he knew some years ago would help him in his business, he contacted D1 prior to his arrival in Hong Kong. He then stayed in D1’s premises starting from late September 2015, while waiting for money to be transferred to him from Columbia for his business. When staying there, Mr Tracy said that D2 then succumbed to the temptation of the drug deal.

Again, different letters were given to me by Mr Tracy. One was from Father Wotherspoon who said that D2 had also assisted in the campaign by providing letters or items to be posted at the relevant website and the Facebook. The others were from D2 himself, his wife, his sons, his priest and his former business associates. In short, all spoke of D2 being a responsible and respectable person although I also noted that the wife said in the letter that his absence was “due to erroneous facts for which he was deprived of his liberty”.

Insofar as Father Wotherspoon’s letter is concerned, two letters said to have been written by D2 were attached and I noted that in the one dated 25 August 2017, the second paragraph reads:

“I am not going to explain the reason why I am arrested because only God knows it. But what I really want to say is that despite of not being involved in any drug related activity, I have seen with my own eyes, the suffering and pain of those arrested and convicted for drug trafficking.”

In the course of mitigation, Mr Tracy told the court that he had obtained a waiver of his client’s privilege and he provided to the court a copy of a letter written by the solicitors for D2 to the Legal Aid Department dated 26 September 2016 in which there was a mentioning of this:

“I also see that the committal took place before the judgment in Abdul was delivered, meaning the A/P will be sentenced under the old system of awarding one-third discount at any time if he decided to change his plea.”

Mr Tracy therefore informed me that D2 did not receive any advice of the possible impact of the one-third in respect of the listing of the case and that the legal team was proceeding on the basis that the old system applied.

Further, Mr Tracy submitted that there might be different interpretations to be put to paragraph 236 of the Court of Appeal judgment in Ngo Van Nam and that a lot of the practitioners in the profession did take it to mean that as long as the defendant was committed before the Court of Appeal judgment, the defendant would be entitled to the full discount if he was to change his plea prior to or on the first day of the trial.

When asked whether he accepted that D2’s position was different because he tendered his guilty plea after an unsuccessful section 16 application in respect of the count to which he eventually pleaded guilty, Mr Tracy submitted that the application was a serious and well considered one and that the court indeed discharged him of the conspiracy count. Mr Tracy added that given the section 16 application, D2 could not have tendered his plea earlier for it would have been contradictory to his application. In other words, Mr Tracy submitted that it was a timely plea when D2’s application was refused and that he should therefore be entitled to the full discount.

When further asked if that would be more a tactical move, not reflecting any genuine remorse, Mr Tracy said that D2 acted based on the advice of his lawyers.

Sentencing Considerations

The tariffs for trafficking in cocaine are the same as those for heroin, see AG and Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming and Others [1990] 2 HKLR 370. For trafficking between 200 and 400 grammes of cocaine, a term of 12 to 15 years’ imprisonment is called for. Having considered the facts of this case and the amount of the drugs involved, I take the view that the appropriate starting point should be one of 12 years and 9 months. That is a total of 153 months.

I would first like to deal with the question as to whether the defendants are entitled to the full one-third reduction. To me, it is plain that the listing of a case for trial is an important milestone. In the case of Ngo Van Nam, the Court of Appeal has specified that subject to the overriding discretion of the judge in sentence, if the defendant pleads guilty after committal but up to and until days are fixed for his trial, the appropriate discount for sentence from the starting point is 25 per cent rather than the one-third if he enters his guilty plea at the stage of committal. And then, there is paragraph 236 to which I have referred earlier.

As mentioned before, both defendants reached the stage of listing after the Court of Appeal judgment had been handed down, not before. In the case of HKSAR v Yu Chi Pang [2017] 1 HKLRD 446 which was referred to me by Mr Tracy, the defendant was both committed and listed for trial before the Court of Appeal judgment. Therefore, following paragraph 236, he was still in the previous system and he was entitled to the full one-third reduction although he only tendered his plea after the listing but before the commencement of the trial. Thus, this case is not of much assistance to the defendant in suggesting that despite the listing of their cases after the Court of Appeal judgment, they would still be entitled to the full reduction.

In fact, as the Criminal Listing Judge, I have, in the period shortly after the Court of Appeal judgment was handed down, granted adjournments in relation to the listing hearings on the ground that the defence would need more time to explain the implications of the Court of Appeal judgment to the defendants.

In other words, while it might be that as put to me by Mr Tracy, quite a number in the profession have understood paragraph 236 in a different way, there were others who took it to mean in the same way as I have understood it. However, I am not here to deal with the question as to what the general understanding of that paragraph is in the profession. I am here to deal with the sentence of these two defendants. Based on what Mr Sherry and Mr Tracy have told me, in particular, the letter written by D2’s solicitors to the Legal Aid Department, I am prepared to accept that both defendants were not aware of the possible implications in sentence reduction at the time when their cases were listed for trial.

Therefore, insofar as D1 is concerned, I would grant him a full one-third reduction for his plea. However, insofar as D2 is concerned, I would only grant him a reduction of about 20 per cent as he only tendered his guilty plea to this substantive offence after he had failed the section 16 application in relation to this count and only on the day when he was scheduled to be arraigned and tried.

At paragraph 200 of the Court of Appeal in Ngo Van Nam, it was observed that:

“Other than in exceptional circumstances, the remorse of a defendant who pleads guilty is taken to be subsumed in the discount of one-third, afforded for a plea of guilty. We are satisfied that it is not only well established but also working in practice.. Accordingly, we are satisfied that it is appropriate to continue sentencing on that basis.”

Thus, it can be seen that there is the element of remorse subsumed in the one-third reduction given to a guilty plea whether one adopts the previous sentencing practice or the revised one detailed in the Court of Appeal judgment in Ngo Van Nam.

In the case of D2, I find that it was a tactical move by him or even if not so, then at least a decision to test his fortune and hope that he would get discharged by making the section 16 application albeit it was said to have been made upon legal advice. Such certainly does not sit with any genuine remorse and for the reasons I have given, I am therefore not prepared to grant the full one-third reduction as mentioned above.

Let me now turn to Father Wotherspoon’s letters. In both of his letters, it was said that the defendants have made campaign contributions, that is, largely by way of writing letters to be posted at the relevant website. In respect of D1, there were also photographs of someone standing behind an anti-drug banner, one of whom was said to be D1’s son. While it is correct for Mr Sherry to say that in the case of CACC 327/2016, the Court of Appeal commented that there could not be any complaint in respect of the reduction the sentencing judge gave to the defendant for such assistance, it is not an authority to suggest that such assistance should always be awarded with a discount in all cases. In fact, in the case of HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249, the Court of Appeal, in relation to such assistance in Father Wotherspoon’s project, noted that:

“We were informed by Father Wotherspoon that he is aware of other cases where judges have reduced a sentence to allow for the fact that an offender has rendered assistance to his campaign. Mr Cheung for the respondent took issue with this practice as a matter of principle. However, this is not the occasion to consider the propriety of such a practice and if proper, how such a mitigating feature fits into our drug trafficking regime and what value is to be given to it.”

Further, when going through the Court of Appeal judgments in this respect and to just give two examples, I notice that in HKSAR v Ubah Joel Chidiebere CACC 193/2016 (14 June 2017, unreported) and HKSAR v Otieno Millicent Akoth CACC 317/2016 (29 May 2017, unreported), the sentencing judges respectively gave no and 1 month discount to the defendant concerned in respect of such assistance. The point I would like to make is that each must be decided on its own merits and that whether a defendant is entitled to a discount in sentence for the assistance he offered in Father Wotherspoon’s campaign would depend on, inter alia, the extent of his assistance.

In the present case, in respect of both defendants, I do not consider their assistance to be of any significance in terms of sentence reduction. Moreover, in D2’s letter dated 25 August 2017 which was said to have been posted at the relevant website or Facebook, and as I have mentioned earlier, he stated that he was arrested “despite of not having involved in any drug related activity”.

Now, while there is another letter attached which might indicate D2’s acceptance of his wrong doing, this letter dated 25 August 2017 would likely give the readers an impression that he was wrongly arrested.

Although both defendants were of clear record prior to their conviction in this case, that is not any mitigating factor in this type of serious offence. Other than their pleas, there is nothing which would warrant any further reduction in sentence. As to the defendant’s personal circumstances, although the court is sympathetic about the difficulties their families might have to face, such is again not a mitigating factor which would entitle either of them to a further reduction.

Conclusion

Therefore for D1, he would get the full one-third reduction which I have mentioned. 153 months reduced by one-third is 102 months which is 8½ years. This is the term D1 is to serve in respect of the count to which he pleaded guilty.

As for D2, I order him to serve a term of 10 years’ imprisonment and the discount he gets for his plea is about 20 per cent.