HKSAR v. LONDONO MONTEALEGRE MARITZA YANETH

CACC 80/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 80 OF 2016

(ON APPEAL FROM HCCC 98 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1.  The applicant appeared in the High Court on an indictment containing two counts of trafficking in dangerous drugs. In the 1^st count the applicant was jointly charged with Orozco Herrera Alexander and in the 2^nd count her co-accused was the sole defendant.

2.  The applicant and D2 both pleaded guilty on 1 March 2016, to the 1^st count which alleged that on 1 August 2014 they unlawfully trafficked in 500 grammes of a solid containing 303 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  They were convicted by High Court Judge Toh (“the judge”) and on the same day, the applicant was sentenced to 9 years and 4 months’ imprisonment.[1]

3.  On 16 March 2016, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against her sentence.

4.  At the hearing of the application we refused it and said we would hand down our reasons for doing so at a later date.  This we now do.

The prosecution case

5.  In the Summary of Facts used for the purpose of sentencing the applicant, the applicant admitted that on 1 August 2014 at around 7:28 pm, police officers saw the applicant and D2 coming out from Room D located at 6/F, 59 Granville Road, Tsim Sha Tsui.  At the time, a number of police officers were on duty in plain clothes and were in possession of a search warrant permitting them to search Room D on the basis of suspected dangerous drug activity taking place in that premises. The applicant and D2 were intercepted by the police officers.  The applicant was carrying a black handbag which the police then searched.  Inside the handbag the police found a metal container for cookies and in this container, underneath some cookies, there was a transparent resealable plastic bag containing 303 grammes of cocaine.  A subsequent search of Room D discovered a quantity of cocaine and a quantity of cannabis for which D2 accepted responsibility.  These dangerous drugs were the subject of the second count of trafficking in dangerous drugs. 

6.  Room D was rented under the applicant’s name and inside Room D, two sets of electronic scales and a quantity of plastic resealable plastic bags were found.  There was also HK$80,000 cash found in two bundles inside a wardrobe.  The applicant and D2, whom the applicant claimed is her common-law husband, were, both holders of Colombian passports.  The applicant was also a holder of recognizance (commonly known as a “Form 8”) issued by the Immigration Department to persons who would otherwise be detained pending resolution of a claim by them to be allowed to remain in Hong Kong.  There are a number of different categories of claimants and one such category is persons seeking asylum. 

7.  The applicant remained silent when she was interviewed under caution.  D2, however, admitted under caution that all the drugs in question belonged to him.  He had hidden the 303 grammes of cocaine in the cookie tin and placed the tin inside the applicant’s handbag.  When they were intercepted, he was actually on his way to deliver the cocaine to someone in Tsim Sha Tsui.

8.  The estimated street value of the 303 grammes of cocaine in the cookie tin was HK$311,181. 

The mitigation

9.  The applicant was 45 years old at the time of her sentence.  Mr David Boyton, counsel for the applicant and D2 at their sentencing hearing, submitted that the applicant and D2 treated themselves as husband and wife and suggested that the court could:

“... perhaps consider mitigation that if your husband puts drugs in your bag you can’t resist, really. There may be a slight amount of duress there and there might be mitigation in that regard.”

10.  Mr Boyton further submitted that since D2 had admitted that all the seized dangerous drug belonged to him and he was the one who placed it in the applicant’s handbag, the applicant was in fact only assisting and the roles of the two were slightly different.  However, Mr Boyton quite sensibly accepted that the only real mitigation in these cases was the guilty plea. 

11.  Regarding the applicant’s status as a Form 8 holder when she committed the present offence, Mr Boyton urged the court not to treat that fact as an aggravating factor and enhance the applicant’s sentence, notwithstanding comments to the contrary by the Court of Appeal in HKSAR v Sandagdorj Altankhuyag & Anor.[2] He submitted that there was no evidence to suggest that the applicant had come to Hong Kong with the intention of trafficking in drugs and, given the sentence was already long there was no need to increase it further as that would only lead to the sentence being disproportionate to the applicant’s culpability. 

12.  Mr Boyton further argued that as there was no evidence to suggest the applicant was fully complicit in D2’s drug trafficking activities she should be treated only as a co-habitee who was aware of what her partner was doing and other than on this one occasion was simply turning a blind eye to it and was not lending her active support to it. 

The Judge’s Reasons for Sentence

13.  After setting out the facts of the case and summarizing the mitigation advanced on behalf of the applicant the judge noted that the sentencing guideline in R v Lau Tak Ming[3], for trafficking in 200 to 400 grammes of cocaine was a sentence of 12 to 15 years.  As the present case involved 303 grammes of cocaine, the judge considered that the appropriate starting point was 13.5 years’ imprisonment.

14.  The judge then referred to the Court of Appeal’s judgment in HKSAR v Sandagdorj Altankhuyag & Anor[4], where it said that in certain circumstances, the commission of an offence by a foreign national who was the holder of a Form 8 recognizance should be treated as an aggravating factor when assessing sentence.  In giving the judgment of the Court of Appeal in that case, Macrae J, as he was then, said, at paragraph 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. However, it must be recognized of course that there are crimes committed by torture claimants which do not affect the community at large and therefore it is a matter for the sentencing judge to consider in every case.”

15.  In respect of this applicant, the judge considered that as she was a Form 8 recognizance holder when she committed the present offence she had abused the hospitality and liberty offered by the Hong Kong Government and her crime went to the very essence of Hong Kong’s integrity in the international community. 

16.  The judge noted Mr Boyton’s submissions that the applicant was only assisting her husband in the trafficking on this one occasion and had little choice when her husband put the drug into her handbag. The judge said, however, that in the circumstances of this case it was incumbent on her to make clear to all those who might be breaching their Form 8 recognisance by participating in drug trafficking that if caught they should expect that, when the circumstances justify it, they will have their sentences enhanced. 

17.  As the applicant pleaded guilty the judge granted her a full one-third discount and this reduced the sentence for Count 1 to 9 years’ imprisonment.  The judge then enhanced this sentence by 6 months to reflect the immigration status of the applicant when she committed the offence but then reduced this enhancement to 4 months to reflect her guilty plea.  By this route the judge reached a final sentence of 9 years and 4 months’ imprisonment.

The grounds of appeal against sentence

18.  In her initial Grounds of Appeal attached to her Form XI, the applicant merely stated that she wished to apply for leave to appeal her sentence because the sentence was too long.

19.  In her written submissions filed on 8 November 2016, the applicant relied on three matters.  Firstly, she submitted that the starting point was too high as her degree of involvement in the present case was minimal.  In this respect she referred to the cases of HKSAR v Zuberi Zuberi Mussa[5]and HKSAR v Norman Martin Farias Fernandez[6].  In the former case, the defendant had trafficked in 380 grammes of heroin by internal concealment when he flew into Hong Kong.  A starting point of 13 years and 6 months’ imprisonment was adopted and the sentence was reduced to 9 years imprisonment to reflect his guilty plea.  In the latter case the defendant trafficked in 1,634 grammes of cocaine when he flew into Hong Kong with the drugs concealed in a secret compartment of his suitcase.  The judge adopted a starting point of 23 years which he then enhanced by 2 years to allow for the international element.  When discounted for the defendant’s guilty plea the final sentence became 16 years 8 months’ imprisonment.

20.  The applicant submitted that the circumstances in these two cases reflected a much higher degree of involvement in drug trafficking than the circumstances of her case.  Her lower level of involvement should, she argued, result in a lower starting point. 

21.  Secondly, the applicant complained about the enhancement of her sentence to reflect her Form 8 holder status.  She submitted that in some other cases, the court did not enhance the sentence of defendants who were also Form 8 holders.  The cases on which she relied are HKSAR v De Pedro Florence C[7], HKSAR v Yasir Muhammad[8] and HKSAR v Alam Maksud[9].  In all three cases the defendants committed drug trafficking offences whilst being the holder of a Form 8 recognizance and in none of them were their sentences enhanced to take account of this aggravating factor.

22.  The applicant again relied on the fact that her degree of involvement was minimal as a reason for not enhancing her sentence. In addition, she submitted that she did not take advantage of her status in Hong Kong and she never thought about engaging in drug trafficking in Hong Kong.  Her only crime was to turn a blind eye to her husband’s drug trafficking activities and not to report them.  That did not mean, she submitted, that she had taken advantage of the hospitality and freedom that Hong Kong had extended her.

23.  The applicant submitted that the decision in Sandagdorj Altankhuyag should not be applied to her as the nature of crime in the case was very different to hers and the defendants in that case had a high degree of participation in their offences and had come to Hong Kong expressly to commit crime.

24.  Thirdly, the applicant claimed she had provided assistance to the authorities.

25.  The applicant also, in her written submissions, sought to challenge the confiscation of the HK$80,000 seized from Room D.  The applicant alleged that this money was the proceeds of her husband’s merchandise trading between China and Colombia.  She claimed that all the financial statements that could show the source of the money had disappeared after the police broke into her apartment; hence, she had no independent documentary proof of the source of the money.  In any event, she asked the court to consider the financial hardship to her family and to her husband’s family and to return the money to her.  In support of this application she included a document entitled “Power of Authorization” which purported to be signed by D2 and which authorized her “to claim the money confiscated by the High Court of Hong Kong.”

The respondent’s submission

26.  Mr Cliff Ip, Senior Public Prosecutor (Ag), for the respondent, submitted that the starting point adopted by the judge was entirely appropriate and was in strict accordance with the guidelines set out in Lau Tak Ming.  As to the enhancement, he submitted that the judge had dealt with the applicant leniently by increasing the starting point by only four months to reflect the applicant’s immigration status.  Mr Ip referred to a decision of this court in HKSAR v Shah Syed Arif[10], where it had been stressed that drug trafficking impacted on the reputation of Hong Kongas well as the community at large.  In Shah Syed Arif, the appellant trafficked in only 55.88 grammes of cocaine and yet the enhancement imposed by the Court of Appeal was one year imprisonment – a much greater enhancement for a much smaller quantity of cocaine. 

27.  In replying to the applicant’s contention that in some other drug trafficking cases the sentences were not enhanced due to the defendant’s Form 8 holder status, the respondent submitted that those cases did not assist the applicant as the court is not bound by those judgments. 

28.  The respondent further submitted that the applicant had, on 15 August 2016 and 3 November 2016 attempted to provide information to the police.  However, the information provided did not assist in any criminal investigation.  It was said that the names of two purported drug dealers provided by the applicant was not found and verified by police computer database and informers; no building bears the address provided by the applicant where she alleged dangerous drugs were stored, and the information related to drug activities that was provided was about 2 to 3 years ago.

29.  In respect of Mr Boyton’s suggestion that there may have been an element of duress underlying the respondent’s submission to the will of her husband, Mr Ip argued that this claim remained just a bare assertion and there was no evidence to substantiate it.  He referred to the case of HKSAR v Xu Xia Li[11], where the Court of Appeal held that a close personal relationship between co-defendants should normally not be regarded as a mitigating factor in sentencing unless the relationship is such that the defendant was subjected to undue influence or influence close to that. 

Discussion

30.  There was no error by the judge in adopting the starting point she did for this quantity of drugs.  Notwithstanding the relationship between the applicant and D2 the judge was perfectly entitled, on the material before her, to find no duress in the applicant’s decision to assist D2 in couriering the drugs in the cookie tin to someone in Tsim Sha Tsui. 

31.  Furthermore, the charge the applicant faced was a charge confined to this single act of couriering these particular drugs.  She was not charged in respect of any other aspect of D2’s drug trafficking activities and her sentence was solely in respect of this single occasion of couriering drugs. 

32.  It may well be that in relation to this act of couriering that D2 was the principal offender and that he was making use of the applicant.  But this does not avail her for she was knowingly transporting drugs for D2 in what was clearly a joint enterprise activity.  In a joint enterprise activity the different participants may have different roles to play but they are each, by playing their respective roles, lending their support to the success of the joint enterprise.  D2’s greater role in drug trafficking is reflected in the additional punishment imposed on him by his sentence for the 2^nd charge.  In respect of the 1^st charge, there is no justification for distinguishing between the culpability of the applicant and D2 or between the applicant’s culpability and that of those who act alone in importing drugs into Hong Kong.

33.  The judge was also correct to enhance the applicant’s sentence by treating her immigration status as an aggravating factor.  That other judges may not have always done so in respect of the offenders before them is irrelevant to whether this judge was entitled to do it in respect of this applicant in the circumstances of this case.  Despite her denial that she had taken advantage of the hospitality and freedom that Hong Kong had extended her, this is precisely what she did the moment she agreed to courier the drugs for D2.  There is no error by this judge in the exercise of her sentencing discretion.

34.  However, the fact that others may not have had their sentences enhanced when it appears that perhaps they should have, does create an understandable sense of grievance in the minds of those who do have their sentences enhanced.  Of course there may be very legitimate reasons why a judge in the exercise of the sentencing discretion chooses not to enhance an offender’s sentence.  But where there is present in the circumstances of the commission of the offence or in the personal circumstances of a particular offender an aggravating factor that would normally call for enhancement of the sentence, then the sentencing judge should advert to the presence of that aggravating factor and, if it be her determination, explain why, in respect of the offender before her or him, the judge is, nevertheless, not going to enhance the sentence. 

35.  In all the three cases to which the applicant referred the court where no enhancement was imposed, the presiding judge was Deputy High Court Judge S D’Almada Remedios.  In two of the three cases the judge referred to the defendant as being a torture claimant and Form 8 recognizance holder respectively.  In neither of those cases did the judge refer to the judgment of this court in Sandagdorj which had been delivered 2 years earlier.  In those two cases no mention was made by the Deputy Judge of why she chose not to enhance the sentence.  Regrettably, this meant that the Court of Appeal could not explain to this applicant why others had been treated differently from herself.

36.  At the hearing the applicant said she would not pursue her claim in respect of assistance provided to the authorities.  In any event that assistance came to nothing.  It was given several years after her arrest and, unsurprisingly, did not lead to any successful police investigation.  She is not entitled to any additional discount for this belated attempt to render assistance to the police.

37.  The applicant also seeks the return of money forfeited by the court.  These monies were the property of D2 and were forfeited from him.  The applicant relies upon an authorization signed by D2 purporting to authorize her to apply for the return of the monies.

38.  This application before us is an application by the applicant for leave to appeal her sentence.  The forfeiture order forms no part of her sentence.  Rather, it is part of the sentence imposed on D2.  Because it forms no part of her sentence it is simply not before us and for that reason her application in respect of the forfeiture order relating to the $80,000 must fail.  If the return of the forfeited monies is sought by the route of an appeal against sentence then the only person who can appeal the order is D2.

Conclusion

39.  For these reasons we refused the application for leave to appeal sentence.