HKSAR v. JARDIN RODELA MANINGAS

CACC 278/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 278 OF 2011

(ON APPEAL FROM HCCC NO. 385 OF 2010)

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BETWEEN

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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.  On 29 June 2011, the applicant was convicted after trial before Deputy High Court Judge Stuart Moore and a jury for trafficking in a dangerous drug. She was sentenced to 20 years’ imprisonment and now seeks leave to appeal conviction and sentence. She is unrepresented as to conviction but represented by Mr Sadhwani as to sentence.

2.  The indictment alleged that on 8 June 2010 at Hong Kong International Airport she unlawfully trafficked in 1,005 grammes of a mixture containing 571.76 grammes of heroin hydrochloride.

3.  The facts are straightforward.  The applicant is a national of the Philippines and she arrived in Hong Kong from Manila on the evening of 8 June 2010.  She was carrying a holdall bag and as a result of apparently vague answers which she gave to a customs officer, the bag was searched and in it, amongst personal belongings, were three pairs of shoes, hidden in the soles and heels of which were a total of 16 packets of heroin.  The applicant protested that she had been unaware that the shoes she was carrying on behalf of another contained a dangerous drug.

4.  She was interviewed at some length and also testified at trial.  The contents of the interview and of her oral evidence were along the same lines.  At the time of trial she was aged 36 years, a person of no criminal record.  She lived with her boyfriend in Manila and she has a child.  She was not earning a living at the time of the offence but had some savings.

5.  She said that she was told by a friend that there was a lady called Nanay Nene who arranged free trips to cities in Asia, including Hong Kong.  The applicant was interested in a free trip: she particularly wanted to see Disneyland and so she contacted Nanay Nene who said that she had a boss who was very rich and out of the generosity of his heart, wanted to help people who could not afford to do so, to travel.  Thereafter the applicant spoke to the boss.  There was to be provided a ticket, and some spending money, as well as free accommodation in Hong Kong and also some money on her return to the Philippines.  She gave her passport to Nanay Nene and on 8 June at the airport in Manila she met Nanay Nene who returned the passport, and gave her an air ticket.  Nanay Nene was in the company of another couple who looked rich and Nanay Nene asked the applicant if she, the applicant, would do her a favour and take some shoes to Hong Kong to give to Nanay Nene’s cousin there.  She agreed and Nanay Nene packed the shoes into the hand luggage.  The applicant said that she did not examine the shoes and had no reason to believe that there was anything unusual about them or, more particularly, that they housed a dangerous drug.  She had known about a week before the trip that she was to be asked to carry something but had no idea that she was to be used for an illegal purpose.

6.  So the only issue at trial, as the judge made clear, was whether the prosecution proved to the requisite standard that the applicant knew that the shoes contained dangerous drugs.

7.  In her notice of appeal, the applicant merely says that she wishes to appeal both conviction and sentence but no grounds were particularised to save to contend that the conviction is unsafe or unsatisfactory.  She has, however, addressed us today in relation to conviction.

8.  She makes a number of points suggested to be in her favour particularly the fact that no fingerprints were found of hers on the shoes or, for that matter, on the drug packets and no DNA evidence implicating her.  She emphasised the full cooperation she provided to the investigating authorities and is of the view that the jury did not properly follow the judge’s directions and that that can be the only reason to explain a verdict which in her submission is unjust.

9.  We have examined the summing-up carefully.  It placed the issues before the jury clearly and accurately directed them as to law.  The case against the application was based upon circumstantial evidence which it was said led to a conclusion of guilt: the fact of a free passage to Hong Kong; free accommodation in Hong Kong plus spending money, plus a promise of payment upon return to the Philippines; the instruction to buy a SIM card upon arrival in Hong Kong and to phone people with the use of that SIM card through whom or from whom further instructions would be given; and there were two mobile telephones in her luggage.  In all the circumstances, the jury had to consider whether the only reasonable inference to draw was that the applicant well knew that she was carrying drugs or turned a blind eye to the obvious.

10.  There is nothing in the summing-up which constituted an error of law, and there is nothing in the papers before us which shows any irregularity in the proceedings.  In the circumstances there is no basis upon which we could upset the conviction and the application for leave to appeal against conviction is accordingly dismissed.

11.  In relation to sentence, the judge took a starting point of 19½ years’ imprisonment, based upon the fact that the band into which this case fell as provided by R v Lau Tak-ming [1990] 2 HKLRD 370 was the 400 to 600 g band for which a sentence of between 15 to 20 years is suggested.  So the starting point adopted by the judge was appropriate.  The judge enhanced that by six months’ imprisonment to reflect the aggravating feature of the international element, namely, the importation from overseas.  That was materially lower than the enhancement which is normally imposed so that, thus far, there can be no – and there is no – complaint about the judge’s approach.

12.  The single ground of complaint is that the judge failed to give credit to the applicant not merely for her willingness to engage in a controlled delivery to the persons who wanted to collect the shoes from her but specifically for the conduct on her part – limited though it was – to that end.

13.  What happened in this regard was that before she came to Hong Kong she was told that upon arrival in Hong Kong she should acquire a new SIM card and telephone Nanay Nene.  She told the Customs Officers this and a new SIM card was purchased for her and the applicant telephoned Nanay Nene and provided her with the applicant’s new telephone number.  Nanay Nene told the applicant to await a telephone call from someone who would provide her with instructions about the delivery of the shoes.  Someone then telephoned the applicant and instructed her to go to Tsim Sha Tsui.  There was talk about finding a bus to get there but eventually she was told to take a taxi.  She did not get into a taxi but that was because she was told by the officers to stay at the airport and instead one of the Customs Officers spoke to the person who was in contact with the applicant and he, the Customs Officer pretended to be the taxi driver and he spoke in Cantonese.  The person at the other end could not understand Cantonese and somebody else who could speak that dialect came to the telephone and it was arranged for the taxi to go to Chung King Mansions or thereabouts.  But when the taxi reached the agreed destination, nobody was there to collect the drugs.

14.  As the judge correctly pointed out to the jury in his summing-up, that was hardly surprising because the applicant was not in the taxi and indeed there was no lady at all in the taxi.  “I cannot imagine,” said the judge “that anyone would go up to a taxi with a policeman in the back or a customs officer in the back who was male and certainly no female in that taxi.”  Quite why this course was adopted by the investigating team, we do not know but those were the circumstances in which the intended delivery came to nothing.  Not only had the applicant agreed to help but she had played the part expected of her.

15.  The complaint is that the judge gave no credit in sentencing for the applicant’s role in the failed delivery.  He said: “It is true you tried to assist the Customs but it came to nothing.”

16.  It is our view that the applicant ought to have been given some credit for her preparedness to assist in securing the apprehension of the person or persons in Hong Kong to whom the drugs were to be delivered backed up as that agreement was by action on her part.  It is important as a matter of principle to encourage arrested persons to assist in this way and in this case there was no empty offer of assistance but a practical engagement in the exercise, the failure of which did not in any way lie at the door of the applicant.  We are surprised that counsel for the respondent does not see it that way and has suggested that even on the facts we have outlined no credit should be given simply because in the event the assistance in fact provided came to nothing.

17.  Accordingly, we grant the applicant leave to appeal against sentence, treat the hearing of the application as the appeal, allow the appeal, set aside the sentence of 20 years’ imprisonment and substitute therefore a term of 18½ years’ imprisonment.