HKSAR v. CARVALLO MONZON JOHN WINSTON

CACC 144/2019

[2020] HKCA 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 144 OF 2019

(ON APPEAL FROM HCCC NO 415 OF 2013)

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J U D G M E N T

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1.  After over 5 years, the applicant applies for leave to appeal against his conviction and sentence out of time, having pleaded guilty to trafficking in a dangerous drug, namely 0.98 kg of a powder containing 0.66 kg of cocaine, for which he was sentenced to 14 years’ imprisonment.

2.  This application is hopelessly out of time and completely without merit.

3.  The applicant, a Venezuelan national, arrived in Hong Kong on 29 April 2013, carrying a rucksack which concealed the drugs in question.  In a video-recorded interview, the applicant admitted that he brought the drugs into Hong Kong with the intention to take them to mainland China to sell for about US$25,000 in order to clear his debts.

4.  On 5 December 2013, the applicant pleaded guilty to the offence before Deputy High Court Judge Geiser (the judge) and agreed a summary of facts that outlined the circumstances of the offence.  The judge adopted a starting point of 20 years’ imprisonment which he enhanced by one year for the international element to 21 years’ imprisonment.  He reduced the notional sentence by one third for the applicant’s guilty plea and sentenced him to 14 years’ imprisonment.  There is no cause for complaint with the sentence passed on the applicant which was done in accordance with the relevant sentencing guidelines.[1]

5.  In his application for leave to appeal against his conviction and sentence out of time dated 30 September 2019, the applicant states in an affirmation of the same date that he was unwell between 2013 and 2014, for which he still receives medical treatment in prison, and because of an unfavourable outcome in relation to his case before the Long-Term Prisoners Review Board he filed this application.  As for his complaint against conviction, he says he was not involved in trafficking the drugs but merely carried them, and that some were for his own consumption.  As for his complaint against sentence, he says that he was entitled to a 10 percent discount because some of the drugs were for his own use.

6.  The applicant applied for legal aid which was refused on 23 July 2019 and 3 January 2020.  He appears in person in relating to this application.

7.  The applicant was legally represented when he entered his plea of guilty and was sentenced.  Counsel on his behalf submitted that the applicant had a tertiary education with qualifications in science and engineering as well as being a proficient musician.  He explained that the applicant had been involved in a car accident and suffered severe head injuries for which he required medical treatment.  As a consequence, the applicant incurred substantial debt and brought the drugs into Hong Kong to sell in mainland China so as to pay off his debts.  He mentioned that the applicant was a minor user of cocaine in order to alleviate the pain from his injuries. 

8.  Counsel explained that when the applicant initially told the police that the drugs were for his own use this was untrue.  He noted that the applicant in his video-recorded interview conceded that most, if not all, of the drugs were for sale.  He confirmed his instructions that the applicant would only use small amounts of the drugs for pain relief but conceded that the vast majority was for sale.  He told the judge that the applicant in his written instructions to him said:

“I might have used some of it, but only a small amount and the high likelihood is, I would have trafficked in the full amount.”[2]

9.  This application is a serious waste of the court’s time and should never have been brought.  It has unnecessarily drained the resources of the various parties involved including that of the court. 

10.  The applicant’s argument against his conviction that he was carrying the drugs and not trafficking them is a facile play on semantics.  Knowingly carrying or transporting the drugs in the present circumstances clearly comes within the definition of “trafficking” under the Dangerous Drugs Ordinance, Cap 134.[3] It is clear from the record that an unequivocal plea of guilty was properly entered by the applicant. 

11.  The applicant’s argument against his sentence is equally devoid of merit in that he admitted that he was taking the full quantity of drugs to sell in mainland China.  There is no substance whatsoever in relation to the issue of self-consumption.

12.  No effort has been made by the applicant to explain the inordinate delay in filing his application for leave to appeal against conviction and sentence, except to say that it was prompted by the unfavourable outcome before the statutory body established to deal with long-term prisoners.  In determining an application for an extension of time, the court will consider the period and reasons for the delay, the likelihood of a successful appeal, if the extension is granted, and whether by refusing leave, the court is shutting out a substantial and plainly arguable ground of appeal.[4]  

13.  This application is a serious abuse of process and reflects a lack of any genuine sense of grievance by the applicant in relation to his conviction and sentence.  The inordinate delay alone justifies rejecting out of hand any extension of time in order to give notice of an application for leave to appeal against conviction and sentence.

14.  The applicant is accordingly refused leave to appeal against his conviction and sentence.

15.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for renewal of his application.  The applicant should take particular note that a renewal of his application may be viewed to be so devoid of merit that it should warrant a substantial loss of time.

[1]  The judge applied the relevant sentencing guidelines laid out in R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437.

[2]  Appeal Bundle, 10M – O.

[3]  Under section 2, “‘trafficking’ (販運), in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and ‘traffic in a dangerous drug’ (販運危險藥物) shall be construed accordingly.”

[4]  See R v Wong Kai Kong & Anor [1990] 1 HKC 279, at 280I – 281D, HKSAR v Wilson Alberto Corredor Medina and Anor, CACC 296/2007, 31 January 2012, unrep., at para 12, and HKSAR v Nur Mei Lina, unrep., CACC 250/2017, 23 August 2018.