HKSAR v. PINEDA ANTONIO LADORES AND OTHERS

CACC 275/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 275 OF 2011

(ON APPEAL FROM DCCC NO. 155 OF 2011)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1. By a judgment dated 30 November 2011 we disposed of the applications by D1, D3 and D4 for leave to appeal against sentence. For the reasons given in that judgment we allowed the applications and substituted slightly reduced sentences in respect of their convictions on their own pleas for an offence committed on 23 November 2010 of stealing a valuable diamond at the Hong Kong Exhibition Centre.

2. The facts of the case are sufficiently summarised in that judgment and we do not intend to repeat them here, save to say that D2 and D5, whose applications now fall to be determined, were part of the group present at the scene of the theft.

Second applicant

3. The second applicant pleaded not guilty but was convicted and sentenced to 4½ years’ imprisonment. The judge took a starting point of 3 years’ imprisonment and enhanced it by 50% having expressed his view that the offences fell within the meaning of organised crime pursuant to section 2 of the Organised and Serious Crimes Ordinance.

4. When the matter came before us on 30 November 2011 the second applicant sought leave to appeal both conviction and sentence.  In his home made grounds of appeal on that occasion he said that the evidence against him was weak and he did not steal the diamond.  It seems to us however that the evidence against him was overwhelming. It was not necessary for the prosecution to show that he was the person who took the diamond from an arresting place.  It sufficed for the prosecution to show that he was party for stealing the diamond.  However he did raise one matter which we were persuaded required investigation and it was in order to enable that investigation to be conducted that we adjourned his application.

5. The essence of the story which he provided to this Court was that he was materially constrained in the defence that he could advance at his trial.  In truth, he said, he was at the time of the theft offence present in Hong Kong as a bodyguard for someone called Rommel Carlos, otherwise known as Nestor Argente and although he accompanied Nestor, as we shall call him, to the exhibition on the relevant occasion or occasions, he did so purely in that capacity entirely unaware of what Nestor and the others might be up to. However the reason that he was unable to reveal this at trial was because he had before trial received a letter or letters from his wife in the Philippines, whence all the players in this case originated, saying that she and their son were under threat of serious harm were he to reveal that Nestor was the leader of the group in question.  However, he was now in a position, and wished, to tell the truth.

6. The question of course was why, in November 2011 before us, he felt able to reveal his true role as a mere bodyguard for Nestor and Nestor’s role whereas at the time of his trial he had not.  The answer he provided was that it had come to his notice that Nestor was incarcerated in Pik Uk prison so that the fact of his incarceration removed the risk to the second applicant’s family.

7. The matter has been extensively and very thoroughly investigated by the police.  They have taken statements from the other defendants.  They have made inquiries about the person named Nestor and also inquiries of the Philippine Consulate in Hong Kong to check the applicant’s story that he is a confidential agent appointed by the Director of the National Bureau of Investigation of the Philippines; this last point in support of his contention that he is the type of person to whom someone might turn for bodyguard services.

8. The long and the short of these extensive enquiries is that there was indeed a person by the name Rommel Carlos, otherwise known as Nestor Argente, who came to Hong Kong on the same flight as the applicants and who attended the jewellery show at more or less the same time.  But thereafter he left Hong Kong and no such person by his name has been incarcerated in Hong Kong.

9. The police have managed to trace as an inmate of Pik Uk prison someone else who bears some resemblance to the person described as Nestor by this applicant.  He has even been identified by some of the other applicants as the leader of the group.  Yet there are material discrepancies in their accounts and, more particularly, there is no record of the person thus identified travelling in or out of Hong Kong at any stage in 2010.

10. As for the suggestion that the applicant is an agent of the National Bureau, this has been contradicted by the Consulate although an explanation for that has been offered to us by Mr Tze on his behalf today.

11. In addition, and most pertinently, there are features of the applicant’s account which do not make sense.  First, the letters from his wife with news of threats came well after the applicant had provided information to the police in the course of interviews upon his arrest, yet at the time of those interviews he made no mention of his employment as a bodyguard.  Secondly, it is difficult to see why the fact of the imprisonment of a person who allegedly engaged him removed the threat or made the second applicant believe that the threat was removed.  A person in Nestor’s position and of his disposition – assuming he was minded to make serious threats – would have no difficulty in securing the making of other threats and, possibly, their execution, by agents in the Philippines.  And, further, the fact of his incarceration would hardly prevent him from executing his threats after his release; his sentence was not a long one and we are informed that he is about to be released.

12. We are entirely satisfied in the event that there is no basis upon which to doubt the safety of the second applicant’s conviction and, accordingly, his application for leave to appeal conviction is dismissed.

13. Sentence is a different matter.  The judge took a starting point of 3 years’ imprisonment and enhanced it by 50% for the reason we have particularized.  For the reasons we provided in our earlier judgment, the sentencing judge erred in categorising this as an organised crime upon the basis he stated.  So the enhancement must be set aside but there were aggravating features, to which we have referred in that judgment, which warranted a sentence after trial of 4 years’ imprisonment.  Accordingly, the second applicant’s application for leave to appeal sentence is granted, we treat the hearing of the application as the appeal, allow the appeal, set aside the sentence of 4½ years’ imprisonment and substitute therefor a sentence of 4 years’ imprisonment.

14. The application for leave to appeal against conviction is in the event impertinent.  The second applicant has caused an extensive investigation to be made on the basis of a story which has transpired to be, in our judgment, a fabrication.  We shall hear counsel as to why an order should not be made under section 83W of the Criminal Procedure Ordinance for loss of time served pending this appeal.

Fifth applicant

15. As we indicated in our judgment of November 2011, the fifth applicant pleaded guilty to the theft offence as well as to one count of breach of a deportation order.  On the theft charge, he was sentenced to 3 years’ imprisonment and for the offence of breach of the deportation order to 8 months’ imprisonment, four months of which were ordered to run concurrently making a total sentence of 3 years and 4 months’ imprisonment.

16. The applicant lodged an application for leave to appeal the sentence of 3 years’ imprisonment but he subsequently abandoned that application.  He now asks the court to treat that application as a nullity and to determine his original application for leave to appeal.

17. At the hearing on 30 November 2011, he advanced an explanation for the abandonment and that too has been the subject of examination.

18. His explanation is that three different people misled him into abandoning his application: a fellow prisoner told him, he says, of the danger of an increase in sentence on appeal; the officer who handed the notice of abandonment form to him told him that if at a later stage he wished to appeal, he might be able to do so; and, in addition, a lady visitor from a voluntary missionary organisation provided him with similar advice.

19. We have affirmations from both the prison officer as well as from the lady in question, both of whom firmly deny tendering any such advice.

20. In order to succeed on an application to set aside an abandonment, it is incumbent upon the applicant to show that he did not know the nature and effect of his act.  He has failed to do so and accordingly this application is denied.

21. It is correct to say that for the reasons given in the case of the other applicants we would have reduced his sentence in relation to the theft charge to one of two years eight months’ imprisonment.  It is open to this applicant to petition the executive accordingly but as far as this Court is concerned we have no jurisdiction to entertain his renewed application for leave.

[Submissions for Second Applicant]

The second applicant and loss of time

22. We have heard counsel on the question of loss of time.  For the reasons we have intimated, we consider that this is a case in which the power conferred by section 83W of the Criminal Procedure Ordinance should be invoked and we order that one month of the applicant’s period in custody pending the determination of this appeal against conviction shall not be reckoned as part of the term of the sentence to which the second applicant is for the time being subject.