HKSAR v. BENITES CERNA ANIBAL RONAL

CACC 366/2016
[2018] HKCA 67

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 366 OF 2016

(ON APPEAL FROM HCCC NO. 360 OF 2016)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicant, who appears in person having been refused the grant of legal aid, seeks leave to appeal out of time against the sentence of 22 years and 9 months’ imprisonment imposed on his conviction on 10 November 2016 after trial by Deputy High Court Judge D’Almada Remedios, as D’Almada Remedios J was then, and a jury of a count of trafficking unlawfully in a dangerous drug on 24 December 2015, namely 773 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  Having given notice of an application for leave to appeal against conviction only by filing Form XI with the Court on 29 November 2016, that application was dismissed on 2 May 2017 on the applicant filing a notice of abandonment with the Court.  On 12 June 2017, the applicant gave notice of his application for leave to appeal against sentence out of time by filing Form XI with the Court.

3.  Acknowledging that there were reasonably arguable grounds of appeal against sentence, Mr Pierre Lui, for the respondent did not oppose the application for leave to appeal out of time.

The trial

4.  There was no dispute at trial that having been intercepted and detained by Customs Officers on his arrival at Hong Kong International airport on 24 December 2015, having travelled from São Paulo, Brazil via Abu Dhabi, the applicant discharged 41 pellets which contained the 773 grammes of cocaine.

5.  The applicant gave evidence in the defence case testifying that he had been forced to swallow the pellets after he had been subjected to violence and in face of threats to kill him and his family.  Further, the applicant testified that he did not know that what he had swallowed contained dangerous drugs, albeit that he acknowledged that the contents were illegal.

Reasons for sentence

6.  In sentencing the applicant, the judge adverted to the guidelines for sentencing in cases of unlawful trafficking in cocaine articulated by this Court in its judgment in HKSAR v Abdallah [1] and noted that the range of sentence appropriate to trafficking in 600 to 1,200 grammes of cocaine was 20 to 23 years’ imprisonment.  Then, the judge stipulated a starting point for sentence of 20 years and 9 months’ imprisonment.  Having noted that in the judgment in HKSAR v Abdallah this Court had said that unlawful trafficking in dangerous drugs by way of importation into Hong Kong was a factor of aggravation in the commission of the offence, the judge stated that she enhanced the starting point taken for sentence by 2 years’ imprisonment. Accordingly, in the result the judge sentenced the applicant to 22 years and 9 months’ imprisonment

Application for leave to appeal against sentence out of time

7.  In an affirmation filed with the Court on 12 June 2017, together with Form XI, the applicant explained the fact that the application was six months out of time by stating that he did not know about procedures, did not have a lawyer and did not speak English.

Grounds of appeal against sentence

8.  In his home-made grounds of appeal against sentence the applicant asserted that he wished to help to ensure that others did not commit his mistake.  He asked the Court to reduce his sentence so that he could see his 74-year-old mother again.

The respondent’s submissions

9.  Notwithstanding his submission that the applicant had not advanced any reasonable explanation for making his application out of time, Mr Lui submitted that the appeal was reasonably arguable on the basis that, although the starting point taken for sentence stipulated by the judge was within her discretion, the enhancement of sentence was arguably too great having regard to the judgment of this Court in HKSAR v Chung Ping Kun.[2]  In that judgment, this Court suggested as a “broad guideline” that in circumstances in which the element of enhancement articulated in HKSAR v Abdallah arose for amounts of less than 1kilogram of dangerous drugs that the level of enhancement be between 1 to 2 years’ imprisonment for between 500 and 1,000 grammes of those kinds of dangerous drugs.

10.  Mr Lui submitted that, applying an arithmetic approach to the 773 grammes of cocaine in which the applicant trafficked unlawfully, the enhancement of sentence ought to have been 1.546 years although he acknowledged that the level of enhancement lay within the judge’s discretion.

A consideration of the submissions

11.  It is to be noted that in mitigation Mr Percy, counsel for the applicant at trial, specifically drew the judge’s attention to the fact that the quantity of cocaine in which the applicant had unlawfully trafficked was 773 grammes and, therefore less than the 1 kilogram to which reference was made in the judgment of this Court in HKSAR v Abdallah.  The following interchange ensued between counsel and the judge:[3]

“ Mr PERCY: … The guidelines state that after trial, subject to enhancement - and of course there will be enhancement - the following guidelines apply, 600 to 1,200 grammes of cocaine in this case, 20 to 23 years’ imprisonment. This of course has been aggravated by the fact of the international element of importing dangerous drugs into Hong Kong. Under this guideline, it is below 1 kilo, we dealing here with 773 grammes.

COURT: But it’s above 1 kilo, it’s 1.14 kilogrammes.

Mr PERCY: The guidelines suggest that anything above 1 kilo will be not less than 2 years’ enhancement. Here, it is below 1 kilo.

COURT: It is above 1 kilo.

Mr PERCY:  No.  It is 773 grammes which is below 1 kilo, and therefore the enhancement is very much of the discretion of the court.  I invite the court to not reach a starting point beyond 22 years those are my submissions.”

12.  On its face, it appears that the judge thought that the overall amount of the liquid, namely 1.14 kilograms, within which the 773 grammes of cocaine was contained, was the weight relevant to the issue of enhancement of sentence.  With respect to the judge, if that be the case, that is clearly incorrect.  As was noted in HKSAR v Abdallah it was made clear in the judgment of this Court in R v Lau Tak Ming[4], which established guidelines for unlawfully trafficking in heroin, it is the weight of the narcotic which is considered in determining which is the appropriate band of sentence.[5]  In the judgment of this Court in the Attorney General v Pedro Nel Rojas [6] those guidelines were adopted for offences of trafficking unlawfully in cocaine.

13.  In HKSAR v Abdallah guidelines for sentencing after trial were articulated by this Court to supplement those set out in the judgment in R v Lau Tak Ming in respect of unlawful trafficking in amounts of above 600 grammes of heroin.  Having noted that the guidelines did not take into account any aggravating circumstances in the commission of the offence the Court went on to state:[7]

“ It will be an aggravating factor calling for the enhancement of the starting point where for example:

(1) an international element is involved;

(2) …”

The Court went on to say:[8]

“ We do not envisage that the enhancement, for any of the reasons we have itemised, for amounts above 1 kg will be less than 2 years’ imprisonment in addition to the new guideline tariffs we have set out.”

14.  In HKSAR v Chung Ping Kun, in addressing the issue of inconsistencies in the enhancement of sentence for unlawfully trafficking, in circumstances of importation into Hong Kong, in amounts of less than 1 kilogram of heroin and cocaine, this Court articulated broad guidelines that were suggested for the level of enhancement:[9]

“ 1) Up to 250 grammes	6 months
2) Between 250 and 500 grammes	6 months to one year
3) Between 500 and 1,000 grammes	1 year to 2 years”

Quite clearly, whilst retaining judicial discretion in sentencing, the guidelines suggested, at least initially, an arithmetic approach to sentencing.

15.  It is unfortunate that neither Mr Percy, nor counsel for the prosecution at trial, drew the attention of the judge to the judgment of this Court in HKSAR v Chung Ping Kun,which had been handed down fully 16 months earlier. On the other hand, it is to be acknowledged that, in effect, the guidelines did no more than articulate the obvious proposition that the level of enhancement of sentence be proportionate to the amount of dangerous drugs in which the defendant trafficked unlawfully.

16.  We are satisfied that starting point taken for sentence of 20 years and 9 months’ imprisonment stipulated by the judge was a sentence that lay within her discretion.  On the other hand, we are satisfied that the judge fell into error in enhancing that sentence by 2 years’ imprisonment.  Having regard to the quantity of cocaine which the applicant imported unlawfully into Hong Kong, namely 773 grammes, we are satisfied that the appropriate enhancement of sentence was 18 months’ imprisonment. The resulting overall sentence is 22 years and 3 months’ imprisonment.

Conclusion

17.  In the result, we allow the application for leave to appeal against sentence out of time and, treating the hearing of the application as the hearing of the appeal, we quash the sentence of 22 years and 9 months’ imprisonment imposed on the applicant and substitute a sentence of 22 years and 3 months’ imprisonment.