PRIETO VAZQUEZ TALINA v. THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER

HCAL 1228/2020

[2024] HKCFI 2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1228 OF 2020

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D E C I S I O N

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A.  Introduction

1.  The Applicant was convicted of trafficking in a dangerous drug in Hong Kong High Court criminal proceedings, HCCC 191/2012, and on 13 May 2013 was sentenced to imprisonment for 27 years. Though she applied to appeal against conviction, the appeal was subsequently abandoned in June 2014.

2.  Though the Applicant was sentenced on 13 May 2013, she had been held on remand since 19 September 2011. Subject to good institutional behaviour, the Applicant should be discharged on 15 September 2029.

3.  By Form 86 dated 18 June 2020, the Applicant sought leave to apply for judicial review so as to challenge the decision (“Decision”) of the Putative Respondents not to give consent for her transfer under the provisions of the Transfer of Sentenced Persons Ordinance Cap 513 (“TSPO”). The Decision was communicated to the Applicant by the Security Bureau’s letter dated 23 March 2020.

4.  It seems that the application was thought, unfortunately and incorrectly, to involve an intended challenge to a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“Board”). The incorrect categorisation appears to have been discovered when the Court made an inquiry of the Board in April 2024, the response to which revealed that the Applicant had not made any appeal/petition against a non-refoulement claim decision to the Board. Though the application to apply for judicial review had been filed with the assistance of an officer of the Mexican Consulate, I am not aware of any enquiries made of the Court by any of the Applicant or someone assisting her, or by the Putative Respondents, in the interim period.

5.  In any event, the proceedings were then brought to my attention, and I gave directions on 13 May 2024, giving leave to the Putative Respondents to file and serve (with copies of any relevant documents) an Initial Response to the application for leave to apply for judicial review, and leave to the Applicant to file and serve a reply to the Initial Response. I also indicated that depending on the contents of those documents, if received, I would decide whether to deal with the application for leave to apply for judicial review on paper, and if so that I would proceed to do so without further notice to the parties.

6.  By virtue of a subsequently extended timetable, the Initial Response was due to be filed on or before 2 July 2024, and any Reply by the Applicant on or before 23 July 2024.

7.  An Initial Response dated 2 July 2024 has been provided, signed by Ms Jess Chan, Acting Senior Assistant Law Officer (Civil Law). However, the Applicant has not filed any Reply or other response to that Initial Response, either by the extended deadline or to date.

8.  Having considered the materials, I am of the view that the matter can appropriately be dealt with on the papers. This is my Decision.

B.  Conviction and Sentence

9.  As the Putative Respondents took into account, when making the Decision, the gravity of the offence for which the Applicant was convicted, it is appropriate briefly to identify some of that background, which can conveniently be found in the transcript of the sentencing hearing in HCCC 191/2012.

10.  The proceedings involved trafficking in drugs in a quantity which the sentencing judge described as “staggering”. Persons including the Applicant were caught carrying 538 kg of a mixture with an active cocaine content of 422.5 kg. The street value of the drugs was estimated at over half a billion Hong Kong dollars (approximately US$65 million).

11.  The Applicant was the 4^th defendant in those proceedings. Amongst the six defendants, she alone pleaded not guilty, as was her right. She was found guilty after trial on one of the two counts laid against her. As the sentencing Judge remarked, by her not guilty plea, she forfeited her expectation of a substantial discount on sentence. Nor could any further discount be given to reflect her previous good character and family circumstances, where it was she who gambled with her own and her child’s happiness by becoming involved in the drug trafficking enterprise. As the sentencing judge noted, the Applicant involved her child in it by bringing him here to Hong Kong from Mexico, and the judge was satisfied that the Applicant (and the 2^nd defendant) had used their child in a most cynical manner as a charade to deflect suspicion from themselves, for (as the sentencing judge rhetorically asked) who would suspect that a young couple and their small child were carrying a vast quantity of cocaine?

12.  Noting that the Applicant was found guilty by the jury on a count which related to 5.98 kg of a mixture containing 4.6 kg of cocaine, and by reference to the sentencing guidelines/bands, the sentencing judge took as the starting point a sentence of 26 years’ imprisonment, and added to it one year for the international aspect, making the total of 27 years. For the reasons he had already explained, he stated that there could be no discount in sentence and the Applicant must serve the full 27 years of imprisonment.

C.  Transfer of Sentenced Persons

13.  On 27 June 2014, the Applicant applied to be considered for transfer to Mexico to serve the remainder of her imprisonment term. The requested consideration fell to be conducted in accordance with the TSPO. This is because there is no bilateral agreement made between the HKSAR Government and the Government of the United Mexican States for the transfer of sentenced persons.

14.  Ms Chan has helpfully made reference to the relevant provisions of the TSPO, which came into operation on 6 June 1997 and has continued in force since that date.

15.  The long title of the TSPO identifies that it is an ordinance to make provision for the transfer between Hong Kong and places outside Hong Kong of persons detained in institutions by virtue of orders made by courts in the exercise of their criminal jurisdiction; and for matters incidental thereto or connected therewith.

16.  For present purposes, the core material provisions of the TSPO are to be found in sections 3 and 4. They provide as follows:

3. Issue of warrant, etc.

(1) Subject to section 4, the Chief Executive may, pursuant to any arrangements for the transfer of sentenced persons, issue a warrant in the form specified in Schedule 1 providing for the transfer of a sentenced person—

(a) into Hong Kong from the place outside Hong Kong to which those arrangements are applicable; or

(b) to the place outside Hong Kong to which those arrangements are applicable.

(2) The Chief Executive may, by notice in the Gazette, amend Schedule 1.

4. Restrictions on issue of warrant

(1) The Chief Executive shall not issue an inward warrant unless—

(a) the acts or omissions constituting the conduct in respect of which the sentence was imposed amount to conduct which, if the conduct had occurred in Hong Kong, would constitute a criminal offence under the law of Hong Kong;

(b) the sentenced person—

(i) holds a permanent identity card within the meaning of the Registration of Persons Ordinance (Cap. 177); or

(ii) in the opinion of the Chief Executive, otherwise has close ties with Hong Kong;

(c) the sentence imposed is for—

(i) life;

(ii) an indeterminate period; or

(iii) a fixed period;

(d) no further criminal proceedings relating to the sentenced person in respect of the conduct which gave rise to the sentence imposed are pending in the place outside Hong Kong; and

(e) an appropriate authority of the place outside Hong Kong and the sentenced person (or a person acting on his behalf) have consented to the transfer.

(2) The Chief Executive shall not issue an outward warrant unless—

(a) the acts or omissions constituting the conduct in respect of which the sentence was imposed amount to conduct which, if the conduct had occurred in the place outside Hong Kong, would constitute a criminal offence under the law of that place;

(b)     (i) in the case of a transfer to a place outside the People’s Republic of China, the sentenced person is a national of that place or, in the opinion of the Chief Executive, otherwise has close ties with that place; or

(ii) in the case of a transfer to Macau, the sentenced person is a permanent resident of Macau or, in the opinion of the Chief Executive, otherwise has close ties with Macau;

(c) the sentence imposed is for—

(i) life;

(ii) an indeterminate period; or

(iii) a fixed period;

(d) no further criminal proceedings relating to the sentenced person in respect of the conduct which gave rise to the sentence imposed are pending in Hong Kong; and

(e) an appropriate authority of Hong Kong and the sentenced person (or a person acting on his behalf) have consented to the transfer.

17.  Hence:

(1)  Section 3 provides amongst other things for the issuance of a warrant by the Chief Executive for the transfer of sentenced persons to places outside Hong Kong to which the arrangements are applicable.

(2)  An Outward Warrant may be issued for the delivery of the sentenced person to an authorised escorting officer for the purpose of removal of the sentenced person to a receiving place outside Hong Kong, to serve in the receiving place the sentence imposed on him in Hong Kong.

(3)  However, such an Outward Warrant shall not be issued unless the restrictive conditions under section 4(2) have been fulfilled.

(4)  The arrangements also require a tripartite consent given by the sentenced person concerned, the receiving place and the HKSAR.

D.  This Case and the Decision

18.  As regards the case of the Applicant, the Putative Respondents refused to give the requisite consent under section 4(2)(e) of the TSPO. The refusal was on the basis that the Applicant would be eligible for conditional release under the law of Mexico, and such a consequence would not serve the legislative intent of the transfer arrangements for the continued enforcement of the remainder of the imprisonment of the transferred sentenced person in the receiving place.

19.  Had there been any transfer arrangements, the term of the Applicant’s sentence would need to be calculated. Ms Chan has provided a letter dated 7 March 2019 from the Consul-General of Mexico to the Security Bureau, which enclosed a copy of a letter dated 31 January 2009 (sic, but apparently a typographical error for 2019) from the Office of the Prosecutor General in Mexico City. The letter identifies that, under the National Law of Criminal Penalties in Mexico as updated, a sentenced person would be entitled to apply for conditional release, with or without electronic monitoring supervision, if that person has served 50% or 70% respectively of the penalty imposed on that person. It was noted that if the Judge on Penalty Enforcement determines that the Applicant is eligible for the relevant benefit, the closest date to request her release under the Conditional Release modality would be 8 June 2021, hypothetically considering that she would be transferred on 30 March 2019. The final calculation would be established by a Mexican Judge on Penalty Enforcement, which is the authority with jurisdiction to guarantee that the final sentence is properly enforced regardless of the claim preclusion, as well as to determine if any benefit is applicable to the sentenced person.

20.  The Putative Respondents refused to give consent for the purpose of section 4(2)(e) of the TSPO, after taking into account:

(1)  the gravity of the offence; and

(2)  the fact that, on the information provided by the Mexican authorities, the Applicant would be entitled to apply for conditional release under Mexican law when she had served 50% of the sentence, meaning that should the Applicant be transferred to Mexico and be granted such conditional release, she would be discharged, with or without electronic monitoring supervision, on a date substantially earlier than the earliest discharge date in Hong Kong.

21.  The Decision was notified to the Applicant by the Security Bureau’s letter dated 23 March 2020, which expressly referred to those two reasons. The Decision also noted that the Security Bureau would inform the Consulate General of Mexico in Hong Kong of the Decision, and ceased to process the application further.

22.  I also take it that there has been no further follow-up from the Consulate General of Mexico.

E.  The Intended Challenge

23.  The Applicant’s Form 86 identified that the grounds of the application are to be found in her affidavit/affirmation. Those grounds are under the general point that the Applicant considers the Decision to be palpably unjust and unfair, in that:

(1)  The Decision was reached in contravention of natural justice by the Security Bureau exercising its administrative power procedurally irregularly and unequally.

(a)  The majority of applications for transfer successfully granted in accordance with the provisions of the TPSO are cases of trafficking in dangerous drug offences that fall within the same category of gravity as her case.

(b)  Those applications were transfer successfully granted have been taking place with countries that have similar constitutional approach to govern the continued enforcement of sentences for transferred prisoners in Mexico.

(2)  There is a breach of natural justice where she had been denied a privilege granted to local prisoners called “Conditional Release Programs (Plan A or Plan B)” that equal the conditions of monitoring supervision programmes implemented in Mexico. Therefore, the Decision cannot be justified without showing a certain level of discrimination by refusing to grant her something regularly conceded to local prisoners who fulfil the requirements for the Hong Kong Conditional Release Programs under supervision.

24.  I shall refer to these as “Ground 1” and “Ground 2” respectively.

F.  The Response

25.  As to Ground 1, Ms Chan submits that the Applicant has adduced no evidence in support of the allegation that a majority of sentenced persons who were sentenced for dangerous drug offences succeeded in their transfer applications processed in accordance with the TSPO. In any event, the transfer application of the Applicant was processed on its individual case basis, as are all similar cases which have no restrictions against transfer of a sentenced person to a receiving place with which there is no bilateral agreement.

26.  Ms Chan refers also to the Applicant’s knowledge of the conditions of her transfer application, including that the Applicant had been made aware that the transfer arrangement, if any, would be made for her to continue to serve the balance of her sentence in Mexico and would not result in early release of her upon transfer to Mexico. Ms Chan referred to the Applicant’s application for transfer dated 27 June 2014 and her written consent dated 15 November 2017.

27.  In the former, the Applicant stated (with Ms Chan’s emphasis):

I … hereby apply to be considered for transfer to the United Mexican States in order to serve the remainder of my sentence. I acknowledge that my application for transfer, if accepted by the Government of the Hong Kong Special Administrative Region of People’s Republic of China (“HKSARG”) will be subject to the consent of the Government of the United Mexican States and thereafter the actual transfer shall be controlled by the arrangements to be agreed and concluded between the HKSARG and the Government of the United Mexican States, to which my consent to will be obtained in due course …

28.  In the latter, the Applicant acknowledged:

the conditions, nature and direction of that part of my sentence remaining to be served after transfer to the United Mexican States, as have been determined in accordance with the arrangements agreed between the Government of the HKSAR and the Government of the United Mexican States …

29.  Ms Chan also refers to the Court of Appeal’s decision in Re Yung Kwan Lee [1999] 3 HKLRD 316, which concerned an inward warrant, but which decision appeared to emphasise the transfer being for service of the balance of any sentence.

30.  As to Ground 2, Ms Chan suggests that the allegation made by the Applicant is misguided, because:

(1)  The Applicant has to be considered for transfer arrangement under the TSPO. The subject matter of the application is transfer to Mexico for the continued enforcement of the imprisonment term in Mexico, as opposed to her early release. An application under the TSPO is different from an application to the Release under Supervision Board for early release on conditions under section 7(1) and (2) of the Prisoners (Release under Supervision) Ordinance Cap 325 (“PRSO”).

(2)  Further, section 7(4) of the PRSO provides that early release scheme is not applicable to a sentenced person who is subject to a removal order or deportation order made under the Immigration Ordinance Cap 115. In this case, the Applicant has no right of abode in Hong Kong, and (according to a memorandum dated 11 June 2024 from the Director of Immigration to the Secretary for Security) deportation proceedings against her are under processing.

31.  Ms Chan also makes the broad submission that a margin of appreciation should be afforded to the decision-maker in this case, and the Court should not intervene – I think Ms Chan must mean should not intervene lightly – in the matter of the transfer of prisoners into Hong Kong or to a place outside Hong Kong, which should be within the expertise of the Security Bureau. She points to the fact that such transfers involve foreign affairs and assumption of international obligations of the HKSARG under bilateral arrangements made with ascending close or receiving place on a case-by-case basis in accordance with the provisions of the TSPO.

32.  Ms Chan points in particular to the provisions of the TSPO, by which:

(1)  under section 3, the Chief Executive may, pursuant to any arrangements for the transfer of sentenced persons, issue a warrant in the statutory prescribed form for the transfer of a sentenced person into Hong Kong, or to the place outside Hong Kong to which those arrangements are applicable;

(2)  under section 4, restrictions are imposed upon the issuing of such warrants, whether inward or outward, including amongst other things and that the arrangement can be made in the absence of tripartite consent;

(3)  under section 6, the Chief Executive may by direction in writing revoke or vary and inward or outward warrant; and

(4)  under section 9, any chance for arrangement shall finally be subject to instructions of the Central People’s Government (through the Office of the Ministry of Foreign Affairs of the People’s Republic of China).

33.  In any event, Ms Chan submits that the Decision and its reasoning are lawful and reasonable in the public law sense.

G.  Consideration and Result

34.  I have considered and weighed the matters advanced by the Applicant, and by Ms Chan in response.

35.  In the circumstances of the nature of the arrangements relating to transfer of sentenced persons, it seems to me correct that I should afford a margin of appreciation to the decision-maker.

36.  But, in any event, the Decision was plainly lawful, as being within the powers granted under the TSPO.

37.  Further, there was no arguable procedural irregularity, when the Applicant’s application for consideration of transfer was made on a fully informed basis, the Applicant had made express acknowledgements and consents, and appropriate enquiries were made of the Mexican authorities to obtain information relevant to the decision to be made, and all to facilitate a proper consideration of that decision.

38.  The reasons for the Decision identified in the Decision letter are relevant considerations to have been taken into account, and to be given such weight as the decision-maker thought appropriate. There is no arguable suggestion that the making of the Decision was not dealt with on its own individual merits by reference to the Applicant’s individual circumstances. Comparison with other cases, even were there to have been evidence about those other cases, is unlikely to be of any real assistance when each case must be dealt with on its own individual circumstances and merits.

39.  Further, early or conditional release under the PRSO seems to me to be a different regime, with a different legislative intent, and potentially rather different balances and imperatives, than under the TSPO.

40.  Having carefully reviewed matters, it seems to me that there are no reasonably arguable grounds of intended review with any realistic prospect of success as might properly found the grant of leave to apply for judicial review.

41.  In those circumstances, the Applicant’s application for leave to apply for judicial review is dismissed.

42.  I make no order as to costs.