HKSAR v. NORENA GUTIERREZ CRISTHIAN ANDRES

CACC 319/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 319 OF 2014

(ON APPEAL FROM DCCC 262 OF 2014)

------------------------

------------------------

------------------------
JUDGMENT
------------------------

Introduction

1.  The appellant appeared before District Judge Dufton (“the judge”) on 11 September 2014 on a Charge Sheet containing two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”).  The 1^st charge alleged that on 21 November 2013 outside Room 2, Flat I, 4^th floor, Maylun Apartments, No 1-25 Shu Kuk Street, North Point, in Hong Kong.  The appellant unlawfully trafficked in 12.39 grammes of a powder containing 5.41 grammes of cocaine.  The 2^nd charge alleged that on the same day at the same place the appellant unlawfully trafficked in 42.36 grammes of a powder containing 18.59 grammes of cocaine and 1.08 grammes of a solid containing 0.43 grammes of cocaine.

2.  The appellant pleaded guilty to the first charge and in respect of the second charge he pleaded guilty to the statutory alternative of possession of a dangerous drug contrary to section 8(1)(a) and (2) of the Ordinance[1]. The prosecution accepted the appellant’s plea of guilty to possession of a dangerous drug.

3.  On the same day the appellant was sentenced to 2 years and 6 months’ imprisonment on the 1^st charge and 1 year and 8 months’ imprisonment on the 2^nd charge.  The judge further ordered that 12 months of the 2^nd charge be served consecutively to the sentence of the 1^st charge making a total sentence imposed upon the appellant of 3 years and 6 months’ imprisonment.

4.  The appellant applied for leave to appeal his sentence and on 14 January 2015 I gave him leave to do so.

The background to the offences

5.  For the purpose of the sentencing hearing the appellant admitted a Summary of Facts which set out the circumstances of the offences.  These were that on 21 November 2013 a detective sergeant, a senior constable and a constable were on duty at the staircase of the 4^th floor Maylun Apartments at North Point.  At around 1820 hrs on that day the officers intercepted the appellant as he exited from Flat I on the 4^th floor of the apartment building.  They revealed their identities to the appellant and searched him.  They found on his person a set of 3 keys, 2 phones, HK$260 and $2,100 CNY.  The keys were used by the police to enter Room 2 of Flat I.  Inside this room the police conducted a body search of the appellant and found a transparent plastic bag containing 20 small resealable plastic bags of suspected dangerous drugs inside the appellant’s underpants.  He was then arrested for trafficking in a dangerous drug and cautioned.  The dangerous drugs found concealed inside his underpants were the subject of the 1^st charge. 

6.  The police officers then searched this room and found 66 plastic bags of suspected dangerous drugs inside a drawer of a wardrobe and 3 plastic bags containing suspected dangerous drugs and one plastic bag containing white powder in the pocket of a jacket hanging beside the sofa in the room.  The dangerous drugs found within Room 2 of Flat I were the subject of the 2^nd charge.

7.  Also found within Room 2 were a metal sieve containing traces of suspected dangerous drugs and cash in the sum of HK$11,300.

8.  Upon analysis by the Government Chemist the seized drugs were found to be the quantities of powder and solid containing cocaine as particularised in the charges.

9.  The estimated street value of the powder cocaine was HK$60,422 and the estimated street value of the solid cocaine was HK$1,534.

10.  Also found in Room 2 was a rental agreement in the name of the appellant for premises at 7^th floor, 461 Kings Road.  The police subsequently searched these premises and found within them a notebook computer, 2 mobile phones, cash of HK$46,636.40 and US$925, a packet of plastic bags and an electronic scale.

11.  The appellant arrived in Hong Kong on 23 October 2012 and does not have and has never had permission to take up employment in Hong Kong.  The appellant is a refugee claimant and is the holder of a form 8 under section 36(1) of the Immigration Ordinance, Cap 115. 

12.  The final paragraph of the Summary of Facts is as follows:

“It is the prosecution’s case that the defendant possessed the cocaine that is the subject of the charge 1 for the purpose of trafficking in a dangerous drug, and the cocaine that is the subject of charge 2 for self use.”

The reasons for sentence

13.  The judge noted that the appellant arrived in Hong Kong on 23 October 2012 and in May 2013 applied for refugee status.  The judge also noted that the appellant had a clear record but said that this carried little weight as he was not a Hong Kong resident.   

14.  After describing the contents of the Summary of Facts, the judge referred to the sentencing tariff guideline for cocaine and said that a proper starting point after trial for 5.41 grammes of cocaine is 3 years and 6 months’ imprisonment.  In respect of the simple possession charge the judge noted that he had been told in mitigation that the appellant had been consuming cocaine in Columbia, from where he came, in quantities of 5 to 6 grammes per week, and that he had the intention to consume all the drugs which he claimed he had bought with a loan provided by a friend with whom he did business.  

15.  In respect of the drugs found in the appellant’s underpants, his counsel had asserted in mitigation that part of these drugs were for the appellant’s own consumption.  However, the judge indicated that he did not accept that claim from the bar table.  The appellant’s counsel did not press the claim further, saying that his client did not wish to give evidence in support of it and that he accepted that the whole of the amount found in his underpants was possessed for the purpose of trafficking.

16.  For the 2^nd charge the judge adopted a starting point of 15 months’ imprisonment. The judge concluded in respect of the drugs the subject of this charge that, given the appellant was a trafficker and given that the drugs found in the flat were all packaged in 69 packets of similar size and packaging that made them suitable for trafficking, there was a risk that the drugs found inside the flat might fall into the hands of others.  He, therefore, increased the 15 months’ starting point that he adopted for the 2^nd charge by 12 months to bring it to 2 years and 3 months’ imprisonment in order to take account of this latent risk of trafficking.

17.  The judge then went on to consider the appropriate totality for the two sentences.  He concluded that were he to order them to be served wholly consecutively it would make a total of 5 years 9 months’ imprisonment which he said would be excessive.  He said that were all the drugs to be used for trafficking then the starting point on quantity alone would not exceed 6 years’ imprisonment.  He said he was satisfied that an appropriate starting point was 5 years’ imprisonment.

18.  The judge then noted that the offences committed by the appellant took place whilst he was awaiting the processing of his refugee claim.  The judge referred to Court of Appeal authority, namely HKSAR v Sandagdorj Altankhuyag & another [2014] 1 HKC 206, and said that this represented an aggravating factor for the purposes of sentencing.  To take account of this aggravating factor the judge increased the starting points on both sentences by 3 months.  The sentence for charge 1 then became 3 years and 9 months and for charge 2 it became 2 years and 6 months. Discounting these starting points by one-third to allow for the appellant’s pleas of guilty he imposed final sentences of 2 years 6 months’ imprisonment in respect of charge 1 and of 1 year 8 months’ imprisonment in respect of charge 2.  He then ordered that 12 months of the sentence of the 2^nd charge should be served consecutively to the sentence of the 1^st charge, making a total overall sentence of 3 years and 6 months’ imprisonment. 

The grounds of appeal

19.  In his perfected grounds of appeal Mr HY Wong, counsel for the appellant, makes only two complaints.  The first is that the judge erred, in the circumstances of this case, in treating the fact that the appellant was a refugee or a torture claimant as an aggravating feature entitling him to enhance the starting point of his sentences.  The second ground of appeal complains that in adopting an overall starting point of 5 years and 3 months’ imprisonment for the two offences this was manifestly excessive.  It is argued that the judge, in effect, sentenced the appellant on the basis that all of the drugs in charge 2 were for trafficking despite the prosecution having accepted the appellant’s plea to simple possession.  

Discussion

20.  The fact that a person who commits a crime in Hong Kong is a foreigner is not, by itself, a factor that aggravates his culpability for sentencing purposes.  Something more is required.  Thus when a foreigner comes to Hong Kong specifically for committing a crime here then that is an aggravating factor and has long been regarded as such.  It matters not that Hong, its people or its institutions, are not the victims of his crime; what matters is that the foreigner has specifically chosen or targeted Hong Kong, the place, its people or its institutions for his criminal activity.  The courts must do what they can to deter foreign criminals who would use Hong Kong as a place for the commission of their crimes.

21.  In HKSAR v Sandagdorj Altankhuyag & anor [2014] 1 HKC 206 the issue of foreignness as potentially an aggravating factor arose in a different context.  In this case the two appellants were Mongolian nationals who had been apprehended preying on victims in an entertainment and tourist area of Hong Kong.  They were acting in concert and stole a handbag hanging over a stool in a bar.  The 1^st appellant had only entered Hong Kong some six hours before he was arrested and the judge found he came to Hong Kong specifically to commit crime here.  The 2^nd appellant was a torture claimant who had been in Hong Kong for two years.  Pending the determination of his torture claim he was permitted to remain in Hong Kong and was at liberty under a recognizance issued by the Director of Immigration.  The 2^nd appellant had three previous convictions for theft.

22.  In dealing with the position of the 2^nd appellant Macrae JA said at page 212D-G:

“… Yet, despite the hospitality extended to him by the authorities and people of Hong Kong, he chose to abuse that privilege by targeting an area well known as a tourist destination, and one that is frequented by significant numbers of tourists and locals alike, in order to steal.

21. Where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.

22. We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime.  Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation.”

In this way this court extended a defendant’s foreign status as a factor that could aggravate his culpability to situations where a person comes to Hong Kong for non-criminal purposes but commits a crime whilst present here and awaiting the processing of an immigration claim. 

23.  Underlying the court’s conclusion in Sandagdorj is the reality that without making an immigration claim this foreigner would have no right to remain in Hong Kong, indeed his continued presence here would in itself be unlawful.  It is only because his immigration claim is being processed that he is permitted to remain in Hong Kong.  This permission flows from Hong Kong complying with international obligations that it has freely accepted and the human rights provisions of the Basic Law. 

24.  But Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim.  It does not do so because it sees itself, and wants to be seen by the rest of the world, as a society governed by the rule of law whose members place a high premium on the rights of the individual.  One such right – perhaps Hong Kong’s most prized right – is the right of the liberty of the individual and Hong Kong extends this right to immigration claimants.  As a consequence the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed. 

25.  By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim.  This is a risk of crime to which the Hong Kong community would not otherwise be exposed.  There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

26.  Analysed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner.  Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law. 

27.  But as Macrae JA pointed out in Sandagdorj, not every crime will justify taking account of the offenders’ immigration situation as an aggravating feature.  The offence committed must, by its nature or the circumstances of its commission, have a serious detrimental, effect on the community at large or significantly impact, prejudicially, on Hong Kong’s reputation. Clearly drug trafficking falls within this category of crime as its commission both affects the community at large and has a significant impact on Hong Kong’s reputation.  Consequently there was nothing wrong either with the judge’s decision to enhance the 1^st charge or to enhance it by 3 months.  There being no complaint about the starting point of 3 years 6 months’ imprisonment for the 1^st charge we find no error by the judge in his adoption of an enhanced starting point of 3 years 9 months’ imprisonment for this charge.

28.  However, the question of whether a simple possession charge under section 8, even if committed in circumstances where a latent risk of trafficking exists, can be said to be in this category of offence has concerned us.  Counsel for the appellant argues that the addict harms no‑one but himself and his conduct, even though criminal, does not have the requisite harmful impact on Hong Kong.  We do not agree.  It is the addict who sustains the trafficking and is at the core of the drug culture.  But for his need there would be no trafficking.  However, he not only sustains the trafficker, he may, as happened here, himself become a trafficker.  This usually occurs because the addict is lacking in sufficient income to fund his addiction or he may mix with other addicts and be a party to the sharing of drugs.  The concept of latent risk, which is part of our sentencing law for the offence of simple possession, is based upon a recognition that there exists a risk that drug addicts will become involved in some form of trafficking, either commercial or social.

29.  We are of the view, therefore, that simple possession is the type of offence which can be said to seriously affect the community at large.  We are also of the view that it can be said to have the effect of tarnishing Hong Kong’s reputation.  It follows from what we have said that the judge did not err in enhancing the sentence for the second charge.  There being no complaint about the starting point for sentence for charge 2, namely 15 months’ imprisonment, we would also adopt that starting point and enhancing it by 3 months because of the circumstances of the appellant’s immigration status, the starting point for sentence for the second charge then becomes 18 months’ imprisonment.

30.  The second ground of appeal criticizes the judge for his sentencing approach to the second charge, both in respect of his assessment of the latent risk of trafficking and in his application of the totality principle.  In respect of the enhancement for latent risk it is said that the judge used this to, in effect, transform a conviction under section 8 into a conviction under section 4 and sentence the appellant for trafficking in the drug.  In this respect, the appellant’s counsel refers to the judge’s use, in determining the appropriate totality, of the sentence that would likely have been imposed under the relevant tariff had the appellant trafficked in the total amount of drugs the subject of the two charges.

31.  The law is clear that on a charge of simple possession the judge is obliged to adopt a three step approach to the assessment of sentence.  This was set out by the Court of Appeal in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405.  It described the three steps at page 407F-H as being:

“Step 1: The judge should normally determine a starting point of between one year to eighteen months’ imprisonment.

Step 2: The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.

Step 3: The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”

32.  How to assess step 2 was the subject of comment by Tang PJ in HKSAR v Minney (2013) 16 HKCFAR 26.  He said at page 32, paragraph 16 of the judgment:

“The assessment of the risk of dissemination depends on the drawing of the correct inference from the circumstances of the possession as established on the evidence. Before any such inference is drawn, the sentencing court must be sure that in all the circumstances of the particular case, the risk of dissemination is real. The sentencing judge is best placed to decide whether there is such a real risk. Often times, it is just a matter of common sense.”

33.  Thus, the assessment of the risk is performed by determining whether the evidence allows of an inference to be drawn that in the circumstances of the case before the court there is a real risk of dissemination of the dangerous drug.  As to what factors are relevant to whether such an inference can be drawn was discussed by Stock JA in HKSAR v Mok Cho Tik [2001] 1 HKC 261. At page 267D-E he said:

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

34.  Here the quantity of drugs is substantial and the person possessing them is both unemployed and engaged in trafficking in the type of drug which he possesses for self‑consumption.  These factors allow not only of an inference that there is a real risk of dissemination but also of an assessment that the likelihood of that real risk eventuating is high.  Such a high risk of redistribution, can quite properly attract an enhancement of 12 months’ imprisonment.  We can detect no error by the judge in further enhancing the starting point for charge 2 by 12 months.  The initial starting point for charge 2 started as 15 months, but when enhanced for the aggravating factors of latent risk (12 months) and the appellant’s immigration status (3 months), it finally ends up being 2 years 6 months’ imprisonment. 

35.  However, when considering totality the judge looked at the two sentences before discounting them for the pleas of guilty and before enhancing their starting points to take account of the appellant’s immigration status as an aggravating factor.  He was thus concerned with his starting points, as enhanced in respect of charge 2 for latent risk, of 3 years 6 months’ imprisonment for charge 1 and 2 years 3 months’ imprisonment for charge 2. He then said: 

“The two respective starting points make a total of 5 years and 9 months imprisonment. This in my view is clearly excessive for if all the drugs were for trafficking a starting point based on quantity alone would not likely exceed 6 years imprisonment. I am satisfied that an overall starting point of 5 years imprisonment would be appropriate.”

36.  He went on to consider the appellant’s immigration status and after concluding he should increase the starting points further, he said:

“In the circumstances I increase the starting points by 3 months to 3 years and 9 months and 2 years and 6 months respectively and the overall starting point to 5 years and 3 months imprisonment.”

37.  By this route he enhanced the sentence of 5 years’ imprisonment that he had already determined was the appropriate pre-discount totality for this offender’s culpability.

38.  We see nothing wrong in the judge comparing his total sentence with the tariff for trafficking for in doing so the judge was simply employing it as a tool to assist him to arrive at a just sentence. This is legitimate in the situation where an offender is being punished both for trafficking in a dangerous drug and possession of a dangerous drug.  It is particularly relevant where, as here, the Judge had decided to significantly enhance his starting point on the simple possession charge to allow for latent risk.  For, clearly, the closer the final sentence is to the appropriate tariff for trafficking the greater the risk that the final sentence will be, or be perceived to be, a punishment for the more serious offence of trafficking of which the defendant has not been convicted.

39.  However, where the judge erred was in considering totality before he reached his final starting points and then enhancing the sentence that he had concluded was the appropriate pre-discount total sentence for the appellant’s culpability.  Taking into account the appellant’s immigration situation was relevant to the starting point he adopted.  He should have first finalized his starting points for each offence and then considered totality.

40.  Had he done so he would have arrived at final starting points of 3 years 9 months for charge 1 and 2 years 6 months for charge 2 which, if combined would amount to in excess of 6 years’ imprisonment.  However, such a lengthy sentence, as the judge noted, would have been an appropriate sentence had the appellant been trafficking in the total amount of drugs.  So, clearly, wholly consecutive sentences would be inappropriate notwithstanding that the judge could properly conclude that the two offences, involving quite separate and additional culpability, could be punished by consecutive sentences.  In this situation the totality principle comes into play to assist the judge in arriving at a just sentence.

41.  The judge’s assessment was that a pre-discount totality of 5 years’ imprisonment was appropriate punishment for this appellant.  After taking into account all of the aggravating features we agree that this is a just punishment for this offender’s culpability.  Discounting this for the pleas of guilty a final total sentence of 3 years 4 months’ imprisonment is reached.  There is very little difference between the sentence of the Judge and the sentence we impose.  The difference that has arisen is attributable to the error of the judge which we have mentioned and which, in correcting, has necessitated us following a different route in reaching the final sentence.

Conclusion

42.  We allow the appeal but the sentences of the judge for charge 1, namely 2 years 6 months’ imprisonment and charge 2, namely 1 year 8 months’ imprisonment, remain unchanged.  However, as we further order that only 10 months of the sentence for charge 2 should be served consecutively to the sentence for charge 1, the final total sentence is reduced to 3 years 4 months’ imprisonment.