HKSAR v. PENASCOSA IMELDA GIMENA

CACC 282/2019

[2020] HKCA 382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 282 OF 2019

(ON APPEAL FROM HCCC NO 379 OF 2016)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

1.  The applicant faced a single charge of trafficking in a dangerous drug, namely 3,824.5 grammes of a solid containing 3,006.7 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was committed to the High Court for trial. On 8 November 2017, which was the day scheduled to be the first day of her trial, she pleaded guilty before Deputy Judge Lugar-Mawson (“the judge”), and was sentenced to 15 years and 5 months’ imprisonment. On 19 September 2019, she sought leave to appeal against the sentence, which application was made 1 year and 9 months out of time.

Summary of facts

2.  The applicant was a Philippine national working in Macau.  On the morning of 8 February 2016, she entered Hong Kong through China Ferry Terminal, and took a flight to Dubai later in the day.  In the late evening of 13 February 2016, she re-entered Hong Kong through Hong Kong International Airport.  She was stopped by Customs officers when passing through the green channel, and her luggage X-rayed and ion scanned.

3.  In a blue backpack she was carrying, Customs officers discovered three metal cans, which should ordinarily have contained chocolates or confectionary, but which contained a total of 248 pellet-shaped objects wrapped in plastic.  The contents of the pellets were later confirmed to be 3,006.7 grammes of cocaine narcotic, with a retail value of over HK$4 million.  Other than the cocaine, three mobile telephones and four SIM cards were sized from the applicant’s possession.

4.  When the applicant was arrested and cautioned, she said that she did not know what the pellets were.  The applicant then expressed her willingness to participate in a controlled delivery operation. During the operation, the applicant pushed a trolley containing her backpack and her other luggage around the taxi stand and arrival areas A and B of the airport in an attempt to effect delivery of the cans; but nobody appeared at the scene to take delivery of them.

5.  A video recorded cautioned interview (“VRI”) was conducted on the evening of the following day.  According to the applicant, she had met a woman from her home country in Macau called Jennifer, who was with a man called Edilberto.  Edilberto proposed that the applicant should go to Dubai, with the suggestion that she might be able to work for Jennifer and Edilberto’s employers. 

6.  Jennifer provided the applicant with a return air ticket for that purpose.  In the event, no such position materialised, but the applicant spent the first day or two in Dubai looking for employment. During her stay in Dubai, she was approached by two men, one of whom she understood to be Jennifer’s brother, and provided with a telephone for subsequent communications with someone called Tony, who was described as the boss.  Tony asked the applicant for her photograph so that his brother, called Mike, could meet her at the departure gate in the airport when she left for Hong Kong.  Nevertheless, to her surprise, it was Jennifer who met the applicant at the airport when she departed from Dubai.  Jennifer then gave the applicant the three cans and said they were for the applicant’s children. Jennifer was travelling on the same flight. 

7.  The applicant found the cans heavy and thought that they smelt, but when she tried to raise the matter with Jennifer, she was told to keep quiet.  Jennifer sat in a section of the aeroplane further back from the applicant.  She thought about throwing the cans away or giving them back, but subsequently forgot about them.  She saw Jennifer at Immigration when the aeroplane landed in Hong Kong. 

8.  The applicant subsequently accepted and admitted that she had unlawfully imported the cocaine into Hong Kong. 

Mitigation

9.  The applicant was a 45-year old divorced mother with three children, who was living with her partner and working in Macau.  She also had an elderly mother with heart disease.  The applicant had agreed to attend a seminar in Dubai so that she could obtain employment through Jennifer and Edilberto with an attractive salary, but she accepted that when she was given the cans, she realised that they contained dangerous drugs.

10.  It was submitted on her behalf that, since the offence was committed before the judgment in HKSAR v Ngo Van Nam[1] was handed down by the Court of Appeal, the applicant should be given a full one-third discount; and, an extra discount for her participation in the controlled delivery, which had lasted about one hour.

Reasons of sentence

11.  The judge considered the following mitigating factors: firstly, the applicant was of clear record; secondly, she had agreed to assist Customs officers, albeit unsuccessfully, in locating Jennifer in the airport in a controlled delivery operation; and most importantly, she had pleaded guilty on the first day of her trial.  He accepted that the offence was committed before the decision in Ngo Van Nam; accordingly, the applicant was entitled to a full one third discount.

12.  The judge adopted an initial starting point of 23 years’ imprisonment, which he enhanced by 2 years for the international element in bringing more than 3 kilogrammes of cocaine narcotic across the border into Hong Kong.  He gave the applicant a full one-third discount for the guilty plea, and a further 5 percent discount to reflect the fact that the applicant had agreed to assist Customs officers to catch Jennifer.  In the result, the sentence passed was 15 years and 5 months’ imprisonment.

Grounds of appeal

13.  The applicant has not provided any proper explanation as to why her application for leave to appeal is 21 months out of time.  In her Form XI, she stated that she believed that she had already provided assistance to the Customs and Excise Department which was helpful and should entitle her to a further sentence reduction.  She complained that Jennifer was allowed to leave Hong Kong on 17 February 2016, notwithstanding that she had provided information about her to the authorities.  In a letter dated 8 October 2019, the applicant stated that Jennifer was on the same flight, and when the applicant was being interrogated, Jennifer was already waiting for her in the airport and texting her; however, despite her provision of information, Customs officers did not allow the applicant to use her telephone in order to communicate with Jennifer; nor did they prevent Jennifer from leaving Hong Kong a few days later.

14.  The applicant also said in her October letter that she has participated in the so-called “campaign” of Father Wotherspoon, and attached two letters from him confirming the same.  His first letter, dated 2 November 2017, confirmed that the applicant’s story, with photographs, as well as information about Jennifer, had been posted on his website, which had been widely circulated through social media among the Filipino community in Hong Kong, so as to prevent the person Jennifer from recruiting other victims. A second letter, dated 26 September 2019, explained that his first letter had not been submitted to the sentencing judge, thus the applicant failed to get any discount for her participation in his “campaign”.  Father Wotherspoon further said that he had used the files of 20 prisoners in Hong Kong, including the information given by the applicant, to persuade officials of Dubai Airport to tighten their security measures, which had greatly reduced the number of drug couriers coming from Dubai Airport to Hong Kong.  He also claimed that the applicant had suffered depression after her sentence and therefore failed to make her application for leave to appeal in time.

Respondent’s submissions

15.  Ms Claudia Ng, on behalf of the respondent, submitted that the sentence imposed on the applicant was lenient.  The starting point in respect of 3006.7 grammes of cocaine narcotic, when viewed strictly arithmetically in accordance with the relevant sentencing guidelines, should have been 24 years and 11 months’ imprisonment.  Yet the judge had adopted a starting point of 23 years’ imprisonment, which was almost 2 years lower than it should have been.  However, the judge’s enhancement of the starting point by 2 years’ imprisonment for the international element was correct.

16.  In response to the applicant’s claimed assistance to the authorities, Ms Ng relied on the affidavit of Customs Inspector Fong Tsz-yeung to show that no one of the full name of the person identified to Customs officers by the applicant, was even on the aeroplane in which the applicant had arrived.  Moreover, according to Immigration records, the person identified by the applicant as Jennifer with her full name was in Hong Kong on the day the applicant was arrested and could not have either passed the cans of cocaine to her in Dubai Airport, nor could she have flown back to Hong Kong on the same aircraft, nor could she have been seen by her at Immigration, as claimed by the applicant.  Since the applicant’s claims were clearly untrue, there was no basis for the authorities to prevent the person known as Jennifer from leaving Hong Kong.   Ms Ko submitted that since the applicant’s claims could not have been true, the judge had been more than generous in giving her an extra 5% discount for participating in a controlled delivery when it cannot have been a genuine attempt to assist the authorities. 

17.  In respect of the letter written by the applicant for Father Wotherspoon’s “campaign”, Ms Ng submitted that there was nothing to warrant any discount, even if it had been brought to the judge’s attention by her experienced counsel; particularly when the applicant had been given a far more lenient sentence than she deserved.

Consideration

18.  The first and most striking thing to observe about this sentence is that the starting point was far lower than it might have been.  The applicant could not have complained if, on a purely arithmetical basis in accordance with the sentencing guidelines in HKSAR v Abdallah[2], the starting point had been 24 years and 11 months’ imprisonment, which should then have been enhanced by 2 years’ imprisonment for the international element of bringing a large quantity of cocaine across the border into Hong Kong, making a notional sentence after trial (that is, before discount for plea) of 26 years and 11 months’ imprisonment.

19.  Moreover, had the judge known what I have now been told about her claims concerning Jennifer, he would have been entirely justified in giving her no credit at all for a controlled delivery operation which was never going to succeed because it was not based on genuine information.  Indeed, as Ms Ng submits, it casts doubt on her whole story of how she claims to have been inveigled into this offence in the first place. Nevertheless, the judge was persuaded to give the applicant an overall discount of 38.3%, from a notional sentence after trial which was already much lower than it could have been.  The resulting sentence was far more generous than it should have been in the circumstances.

20.  Accepting that the judge was correct to give the applicant a full one third discount for plea, notwithstanding that she had delayed pleading guilty until the first day of her trial, her ultimate sentence when viewed strictly arithmetically should have been just under 17 years and 11 months’ imprisonment.  Yet she received 15 years and 5 months’ imprisonment and still appeals, and appeals out of time; even complaining that she should have received yet a further discount for participating in Father Wotherspoon’s “campaign”, when her extremely experienced counsel did not make any use of her so-called participation, such as it was, preferring to concentrate on other more cogent matters of mitigation as he believed them to be.  The applicant has given no reason for the lateness of her application for leave, although Father Wotherspoon, in his letter of 26 September 2019 has suggested on her behalf that she was suffering from depression.

21.  This was a wholly unmeritorious application, which was out of time by a very significant period, and for which there has never been any proper explanation from the applicant.  The application is refused.  I remind the applicant that she has the right to renew her application for leave to appeal against sentence out of time to the Court of Appeal, but in view of the fact that the applicant’s sentence could well have been 2½ years longer than it was, I should give the applicant this clear warning. The Court of Appeal has the power to make an order for the loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the view that the application was without any merit and there was no justification for the renewal of her application.