HKSAR v. MENDOZA BOLANOS EDGAR ANTONIO

CACC 179/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 179 OF 2015

(ON APPEAL FROM HCCC NO. 300 OF 2014)

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REASONS FOR JUDGMENT

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

1. The applicant, who appears in person, having been refused the grant of legal aid and the Hong Kong Bar Association’s Free Legal Service Scheme having declined to assist him, sought leave to appeal against the sentence of 14 years and 4 months’ imprisonment imposed on him by Deputy High Court Judge Campbell-Moffat SC, as Campbell-Moffat J was then, on 11 May 2015, on his conviction on his plea of guilty, of a single count of trafficking unlawfully on 16 September 2013 in 0.66 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing, we dismissed the application and said that we would give our reasons in due course. That, we do now.

The facts

2. The applicant, who was in possession of Guatamalan passport, admitted that, on his arrival at Hong Kong International Airport on 16 September 2013 following his journey Sao Paulo, Brazil via Dubai, he was intercepted by Customs & Excise officers.  On the suspicion that he had ingested dangerous drugs, he was detained at Queen Elizabeth Hospital.  On and between 18 and 24 September 2013 he excreted a total of 96 pellets, which were found to contain the cocaine the subject of the count on the indictment.

3. He accepted that the retail value of the dangerous drug was about $1,132,560.

Reasons for sentence

4. In her reasons for sentence, the judge noted that it was submitted by Mr Tibbo on behalf of the applicant that he had brought the dangerous drugs into Hong Kong because he was acting under duress:

“ On your behalf, defence counsel has urged upon me three papers: two from the Immigration and Refugee Board of Canada dated 7 May 2012 and 16 December 2011, and one from the US Department of State for Human Rights and Labour, which suggests that the Canadian and indeed United States authorities accept that the situation in Guatemala is such that it has one of the highest rates of violent crime in the region and that criminal gangs, such as The Zetas, have considerable control over the population and government officers.

It is advanced on your behalf by defence counsel that you were a target of this gang and that you were coerced to traffic in dangerous drugs under threat of violence to your wife and child.  He submits that that amounts to duress and, indeed, that was the defence which you originally indicated to this court you would be advancing, if this matter went to trial.”

5. Clearly, the judge rejected the submission:

“ Given that fact, and the amount of time that it has taken to bring this matter to plea, I am somewhat surprised that defence counsel can provide no direct support of that contention. Without it, your submission that you were coerced into trafficking in 660 grammes of cocaine is a bare allegation and no more.”

6. Then, the judge noted that it had been suggested that in the United States of America [1] a different approach was taken to sentencing those who trafficked unlawfully in dangerous drugs who performed the role of ‘mules’ only and that Mr Tibbo had submitted that the court should take that approach into consideration.  Of that submission, the judge said:

“ That cannot be done. The courts in Hong Kong have been dealing with the issue of international importation of dangerous drugs for very many years and see fit to revisit this very grave offence from time to time, in order to ensure that its approach is commensurate with the gravity of the offending and the harm to society.

The courts of Hong Kong take a very dim view of the importation of drugs and, as a consequence, the guidelines set out for the assistance of the High Court indicate that only heavy sentences will follow.”

Starting point

7. Having noted that the guidelines for unlawfully trafficking in cocaine provided for in the judgment of this Court in HKSAR v Abdallah [2] stipulated a range of sentence of 20 to 23 years for unlawfully trafficking in between 600 and 1,200 grammes of cocaine, the judge stipulated a starting point for sentence of 20 years and 3 months’ imprisonment.

Enhanced sentence

8. Then, having regard to the aggravated circumstances of the commission of the offence constituted by the international element of importation of the dangerous drugs into Hong Kong, the judge enhanced sentence by one year and 3 months’ imprisonment.

Mitigation

9.  Next, the judge noted that various factors of mitigation had been advanced, namely that the applicant hadno previous criminal conviction in Hong Kong, that he was a man of maturity and that he would be serving a significant sentence of imprisonment separated by a great distance from his family.  Of that, she said:

“ But these factors cannot reduce the sentence I have already indicated, as this is a serious crime for which a deterrent sentence is required and only the most exceptional proven personal circumstances will reduce the sentence below the guideline I have mentioned.”

Discount of sentence

10. Finally, the judge said that she afforded the applicant a one-third discount of the enhanced starting point taken for sentence “even although it was indicated at a late stage.”  In the result, she imposed a sentence of 14 years and 4 months’ imprisonment.

Grounds of appeal against sentence

11. In the grounds of appeal against sentence attached to Form XI, by which the applicant gave notice of his application, the applicant submitted that the sentence was “too high”, because he had brought the cocaine into Hong Kong having been threatened with his own death and that of his family by members of the Zetas, a cartel of criminals responsible for drug trafficking around the world.  Secondly, he took issue with the quantity of dangerous drugs which were said to have been found on him.  He had been told that he would be carrying only 500 grammes of cocaine.  In further grounds of appeal against sentence, which the applicant filed with the Court on 5 September 2016, the applicant reiterated his submissions in respect of the issue of duress, but also contended that the sentence imposed on him was disproportionately high in comparison to sentences imposed on other prisoners.  He provided a schedule of such cases in the Court of First Instance and in this Court.

The submissions of the respondent

12. For the respondent, Mr Ivan Cheung submitted that there was no evidential basis for the judge to accept that the applicant had acted under duress.  Accordingly, the judge was correct in describing the submission as being “a bare assertion and no more.”

13. Mr Cheung invited the Court to note that there had been no suggestion in the submissions advanced on behalf of the applicant that he had sought the assistance of any of the authorities in the various countries through which he had travelled, or on his arrival in Hong Kong, to bring to their notice that he was acting under duress.

14. Mr Cheung submitted that, having regard to the amount of cocaine in which the applicant had trafficked unlawfully and the guidelines stipulated in the judgment of this Court in HKSAR v Abdallah,the stipulation by the judge of a starting point the sentence of 20 years and 3 months’ imprisonment was clearly within the range of the discretion of the judge.  He invited the Court to note the observations made in the judgment of this Court in HKSAR v Masham Deborah James [3] that the often distressing circumstances of couriers “cannot elicit the court’s sympathy and deflect it from applying a consistent policy.” [4]

Enhancement of sentence

15. Mr Cheung submitted that, having regard to the guidelines in the judgment of this Court in HKSAR v Chung Ping Kun [5]in respect of unlawful trafficking in cocaine, ‘ice’ and heroin, in which there was present the aggravating factor of an international element, the judge was entitled to enhance sentence by the one year and 3 months’ imprisonment by which she did enhance the sentence.

16. Of the applicant’s contentions in respect of the amount of cocaine that had been found on him, Mr Cheung drew attention to the fact that at the sentencing hearing the applicant accepted as the factual basis for his plea of guilty that the total weight of cocaine found in the pellets which he excreted was 0.66 kg.

Disproportionate sentence 

17. Finally, Mr Cheung pointed out that all of the cases, to which the applicant referred which were judgments of the Court of Appeal, were judgments prior to the judgment of this Court in Abdallah and therefore irrelevant.  Of cases in which the defendants were sentenced in the Court of First Instance, he submitted that, even if those defendants have been sentenced more leniently than the applicant in circumstances where they were trafficking unlawfully in the same or greater amounts of cocaine, such cases were of no assistance to the appellant.  The only issue for this Court was whether or not the applicant had been sentenced correctly.

A consideration of the submissions

Duress

18. In the course of mitigation the judge raised with Mr Tibbo the absence of evidential support for the submissions that he was making on behalf of the applicant that he was acting under duress:[6]

“ COURT: Aren’t you in a bit of difficulty with the defendant (who?) bears the burden of proof because we only have your word on behalf of your client about this. You have no other evidence or anything to put before the court, do you?

MR TIBBO:  There’s nothing else I have except all I can say is these were my instructions from day one.”

No evidence was forthcoming.

19. As noted earlier, the judge expressed surprise, given “the amount of time it is taking to bring this matter to plea”, that “defence counsel can provide no direct support of that contention.”  No doubt, the judge had in mind the fact that the applicant had been in custody for 20 months prior to pleading guilty.  He had been arrested on 16 September 2013, committed for trial on 11 July 2014.  On 27 August 2014, the Listing Judge fixed dates for the trial, ordering that it was to commence on 11 May 2015.  Pre-trial reviews were held on 16 March and 24 April 2015.  The plea of guilty was tendered on 11 May 2015, the first day of trial.

20. We are satisfied that, in the absence of any supporting evidence, the judge was entitled to describe the claim that the applicant was acting under duress as a “bare allegation and no more.”

The starting point for sentence

21. Clearly, the guidelines set down by this Court in Abdallah apply to the approach to identifying the starting point to be taken for sentence, namely that the 660 grammes of cocaine in which the applicant unlawfully trafficked fell within the range of 600 to 1,200 grammes for which the range of sentence is 20 to 23 years’ imprisonment.

Enhancement of sentence

22. Although the guidelines set out in the judgment of this Court in HKSAR v Chung Ping Kun [7]in respect of unlawful trafficking by way of importation were handed down after the commission of the offence by the applicant, the guidelines represented only a formalisation of the existing appropriate sentencing practice.  The judgment of this Court in HKSAR v Abdallah [8]provided guidelines for sentencing in cases of unlawful trafficking in amounts of above 1 kg in heroin and cocaine, where there was an aggravating factor in the commission of the offence, including an international element.  There, it was suggested that the enhancement of sentence should be not less than 2 years’ imprisonment.

Disproportionate sentence

23. In HKSAR v Carvallo Monzon John Winston [9] the defendant had been sentenced to 14 years’ imprisonment on his plea of guilty to having trafficked unlawfully in 660 grammes of cocaine.  Deputy High Court Judge Geiser took a starting point of 20 years’ imprisonment, which he enhanced by one year’s imprisonment for the international element, given that the defendant had come to Hong Kong with the dangerous drugs from Caracas, Venezuela.  So, the applicant had been sentenced to an additional 4 months’ imprisonment for having trafficked unlawfully in the same amount of cocaine, with the same aggravating feature of an international element in the commission of the offence

24. In HKSAR v Alvares Vanegas [10], the defendant had been sentenced to 14 years’ imprisonment on his plea of guilty to having unlawfully trafficked in 750 grammes of cocaine.  Deputy High Court Judge Geiser took a starting point of 20 years and 6 months’ imprisonment, which he enhanced by six months’ imprisonment for the international element, given that the defendant had come to Hong Kong with the dangerous drugs from Columbia.  So, the applicant has been sentenced to an additional 4 months’ imprisonment, notwithstanding that he had trafficked unlawfully in 90 grammes less of cocaine, in circumstances of the same aggravating feature of an international element in the commission of the offence.

25. In HKSAR v Lizarazo Salazar [11], the defendant had been sentenced to 14 years’ imprisonment on his plea of guilty to having unlawfully trafficked in 830 grammes of cocaine.  Line J took a starting point for sentence of 20 years’ imprisonment, which he enhanced by one year’s imprisonment to reflect the international element, given that the applicant had brought the dangerous drugs into Hong Kong from Brazil.  So, the applicant had been sentenced to an additional 4 months’ imprisonment, notwithstanding that he had trafficked unlawfully in 170 grammes less cocaine.

26. It is clear that the applicant’s sense of grievance in respect of the sentence imposed on him, as is the case with many other applicants who appear in this Court, arises from the fact that others have been given more lenient sentences for unlawfully trafficking in the same amount or more cocaine.  That is borne out by the sentences imposed at first instance to which we have referred.  However, as this Court pointed out to the applicant in the course of submissions that, by itself, is of no avail to him.  At issue, is whether or not the sentence imposed on the applicant was manifestly excessive.

27. Having regard to the fact that the applicant unlawfully trafficked in 660 grammes of cocaine, and that the guidelines stipulated by this Court in Abdallah provided for a range of sentence for unlawfully trafficking in 600 to 1,200 grammes of cocaine of 20 to 23 years’ imprisonment, an arithmetic approach to sentence identifies the sentence as being 20 years and 3.6 months’ imprisonment.  The judge took a starting point to sentence of 20 years and 3 months’ imprisonment.  A similar approach to the enhancement of sentence, given that the 660 grammes of cocaine in which the applicant trafficked unlawfully lies within the range of sentence of 1 to 2 years’ imprisonment, identifies a sentence of 1 year and 3.84 months’ imprisonment.  The judge enhanced sentence by one year and 3 months’ imprisonment.

28. Of course, sentence is not to be determined by an arithmetic approach only.  The court will have regard to all relevant factors.  However, as this Court said in our judgment in HKSAR v Msembo Kilugaja Joram [12]:

“ …it may often be of assistance, in affording transparency to the sentencing process, if regard is had, first to an arithmetic calculation and, secondly an explanation is afforded for such reduction or increase as may be appropriate from that starting point.”

Role

29. In the judgment of this Court delivered by Silke VP in The Queen v Lau Tak Ming [13],in which guidelines for sentencing for unlawful trafficking in heroin were given, the factors to which a judge was to have regard in sentencing were described:

“ Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.” [Italics added.]

30. In the judgment of this Court in HKSAR v Masham Deborah James,having cited that passage, Macrae JA said:[14]

“ It is clear, therefore, that for over a quarter of a century, the courts in this jurisdiction have, as a matter of policy, determined that the quantity of narcotic concerned is the single most important factor in assessing sentences for drug traffickers, and that the often distressing circumstances of those used to courier dangerous drugs, sometimes across the world, cannot elicit the court’s sympathy and deflect it from applying a consistent policy. We acknowledge that this approach may be contrasted with the development of this area of criminal sentencing in, for example, the United Kingdom, where judges are required to determine culpability (the defendant’s role) and harm (the quantity of the dangerous drug) by reference to tables published in a Drug Offences Definitive Guideline issued by the Sentencing Council in 2012. Harm is categorised according to the quantity of the particular dangerous drug concerned, while culpability is determined by reference to whether the defendant played a ‘leading role’, a ‘significant role’ or a ‘lesser role’, as defined.” [Italics added.]

31. Macrae JA went on to say, given the circumstances of that case, and “given the established policy of the courts in Hong Kong…this is not the case to entertain an argument that the guidelines might be recast so as to cater more appropriately for the different roles of drug traffickers.” [15]  Similarly, we are satisfied that this is not such a case.

32. We are satisfied that the starting point taken for sentence by the judge and the level to which she enhanced sentence were entirely appropriate.

Conclusion

33. In the result, we were satisfied that there was no merit in the arguments advanced by the applicant.  Accordingly, the application for leave to appeal against sentence was dismissed.

[1] United States of America v Jurado-Lopez; United States District Court of Massachusetts, 338 F, 2nd edition, Supp 2d 246 (6 October 2004).

[2] HKSAR v Abdallah [2009] 3 HKLRD 437.

[3] HKSAR v Masham Deborah James (CACC 381/2015; unreported, 26 May 2016).

[4] HKSAR v Masham Deborah James, paragraph 24.

[5] HKSAR v Chung Ping Kun [2014] 6 HKC 106.

[6] Appeal Bundle, page 24 A-C.

[7] HKSAR v Chung Ping Kun [2014] 6 HKC 106 (2 July 2014).

[8] HKSAR v Abdallah (12 March 2009).

[9] HKSAR v Carvallo Monzon John Winston (HCCC 415/2013; unreported, 5 December 2013).

[10] HKSAR v Alvares Vanegas (HCCC 72/2013; unreported, 9 September 2013).

[11] HKSAR v Lizarazo Salazar (HCCC 89/2013; unreported, 26 April 2013).

[12] HKSAR v Msembo Kilugaja Joram (CACC 271/2015; unreported, 3 March 2016).

[13] The Queen v Lau Tak Ming [1990] 2 HKLR 370.

[14] HKSAR v Masham Deborah James,paragraph 24.

[15] HKSAR v Masham Deborah James,paragraph 25.