HKSAR v. VALENCIA VARGAS MARLENE

CACC 217/2017

[2018] HKCA 285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 217 OF 2017

(ON APPEAL FROM HCCC NO 152 OF 2017)

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REASONS FOR JUDGMENT

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This is the reasons for judgment of the Court:

Introduction

1.  The applicant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 20 June 2017, she was sentenced by Hon Li J (the judge) to 14 years and 4 months’ imprisonment.  The judge also ordered that a sum of US$1,280 (the US dollars), together with other items, be forfeited.

2.  On 17 July 2017, the applicant applied for leave to appeal against sentence on the ground that the sentence was too long and too heavy when considering the sentences passed on other defendants.  The applicant also applied for the return of the US dollars to her.

3.  At the conclusion of the hearing, we dismissed both her applications.  We indicated that we would give our reasons in due course, which we now do.

Summary of facts

4.  The applicant arrived in Hong Kong on 16 July 2016 and was kept under surveillance by a team of Customs Officers.  She was followed until she eventually arrived at Tuen Mun when the officers decided to intercept her.  Her only suitcase was opened.  Inside the suitcase officers found two concealed compartments, inside which 2 packets containing a total of 1.184 grammes of a solid containing 707 grammes of cocaine were found.  The estimated retail value was HK$1,340,000.  At the time of the arrest the applicant had the US dollars in her possession, with smaller amounts of other currencies.

5.  During a video‑recorded interview, with the assistance of a Spanish interpreter, the applicant claimed, among other things, that she came to HK for sightseeing and that her son had given her the US dollars for the trip.

Background of and mitigation for the applicant

6.  The applicant was 54 at the time of the arrest.  She had a clear record both in Columbia and in Hong Kong.  In mitigation, the judge was told that the applicant was a good citizen in Colombia.  She was a merchant earning about US$2,500 per month.  She sold religious artefacts with her son in a family business.  It was claimed that she had no financial gain from bringing the cocaine into HK.

Reasons for Sentence

7.  The judge adopted a starting point of 20 years 6 months’ imprisonment after considering the sentencing tariff in HKSAR v Abdallah[1].  The judge then enhanced this starting point by 1 year to reflect the international element.  The judge gave the applicant a full one‑third discount from this enhanced starting point of 21 years and 6 months’ imprisonment, sentencing the applicant to 14 years and 4 months’ imprisonment.

The forfeiture proceedings

8.  The applicant, through her counsel, indicated to the judge that she opposed the forfeiture of the US dollars.  Towards that end she gave evidence before the judge on 19 June 2017, after she was sentenced by the judge.  Her evidence, in a nutshell, was that the US dollars were given to her by her son for travelling expenses, for buying souvenir, for paying hotel charges, and so on.  As the applicant appeared to allege that she was forced to bring the cocaine to HK under duress, the judge adjourned the matter so that her counsel could take further instructions from her.

9.  When the case resumed the next day (on 20 June 2017), counsel for the applicant informed the judge that the applicant withdrew her objection to the forfeiture of the US dollars[2].  Counsel also assured the judge that there was no question of the applicant being “forced” to take the dangerous drug to Hong Kong, and that “her plea of guilty and her admission to the facts still stands”[3].

10.  Notwithstanding counsel’s assurance in respect of these two matters, the judge also confirmed directly with the applicant that she no longer objected to the forfeiture of the US Dollars[4]. On receiving the personal confirmation of the applicant, the judge ordered that the US dollars, together with other items, be forfeited.

Ground of appeal re the sentence

11.  The applicant was not legally represented.  Her home-made ground of appeal against the sentence was that in view of her circumstances and the quantity involved, the sentence she received, when compared with the sentences several others had received, was too heavy and too long.

12.  During the hearing, the applicant again stressed that she was forced to traffic in the dangerous drug when she was asked to make submission on her ground of appeal against sentence.

Ground for the application for the return of the US dollars

13.  In her home‑made ground of appeal, the applicant claimed that the US dollars were given to her by her son and it had nothing to do with the crime she had committed.

14.  During the hearing the applicant claimed that she had asked her son to provide her with documents to support her claim that the US Dollars came from the business.  She asked for an adjournment as she still had not received those documents.

15.  We noted that from the outset, the applicant consistently claimed that the US Dollars came from the family business.  That being her case, any document supporting such a claim should have been obtained a long time ago, and should have been before the court when the forfeiture proceedings were heard.  No valid reason had been given for the delay in obtaining such documents.  We refused to adjourn the hearing.

Our consideration on the application to appeal against sentence

16.  According to the sentencing guidelines in Abdallah, the starting point for trafficking 600‑1200 grammes of cocaine is between 20 to 23 years.  The starting point of 20 years and 6 months adopted by the judge is entirely appropriate.  The enhancement of 1 year to reflect the international element is again appropriate (see HKSAR v Chung Ping Kun[5]). The defendant was given a full one‑third discount.  The resulting sentence of 14 years and 4 months’ imprisonment that was imposed on her is neither wrong in principle nor manifestly excessive.

17.  It is well established that where different sentences are passed on different occasions by different judges on different accused for the same offence, the only consideration is whether the sentence passed on the applicant is an appropriate sentence (See R v So Hung-lee and Another[6] and HKSAR v Yip Wai Leung[7]).

18.  Although the applicant claimed, yet again, before us that she was forced to traffic the dangerous drug in question, we bore in mind what had taken place before the judge on 20 June 2017, in particular what the applicant’s then counsel had informed the court.

19.  There was no merit in the applicant’s application to appeal against sentence.

Our consideration on the application to appeal against the Forfeiture Order

20.  Section 83G of the Criminal Procedure Ordinance (CPO) Cap 221 provides:

“83G. A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings.”

21.  This provision confers a right of appeal against sentence on persons who are convicted of an offence on indictment.  But the right of appeal is expressed in terms of being “against any sentence .... passed on him for the offence.”  Section 83G falls within Part IV of the CPO.  Section 80 of the CPO, located at the beginning of Part IV, provides a definition of sentence for the part.  It provides:

“80. Meaning of sentence

(1) In this Part –

sentence, in relation to an offence, includes any order made by a court in dealing with an offender, including a hospital order.”

22.  In R v Thayne[8] the English Court of Appeal was dealing with identical provisions to our section 83G and 80(1).  It held that the breadth of the section 80(1) definition of sentence did not overcome the limiting effect of the words in section 83G that required that the sentence be passed on the defendant for the offence.  In HKSAR v Chan Yuen Yee Carrie[9] our Court of Appeal approved and applied the judgment in Thayne.

23.  These two judgments certainly allow for the argument that a forfeiture order is not a sentence passed on the defendant for the offence of which he has been convicted.  If this argument were correct then a defendant exercising his right of appeal under section 83G in respect of a forfeiture order would have to persuade the Court of Appeal that it had jurisdiction to hear his appeal.

24.  The present case is further complicated by the fact that the right of appeal that the applicant is exercising is not the right of appeal contained in section 83G as she was not convicted on indictment.  She pleaded guilty in the magistracy and so was committed for sentence to the Court of First Instance.

25.  Where a defendant is committed by a magistrate to be sentenced by a judge of the Court of First Instance of the High Court, the defendant has a right of appeal against sentence under section 83H of the CPO.  Section 83H, in referring to the right of appeal, does not employ the limiting words of “passed on him for the offence”.  Whether this section creates a separate, free‑standing right of appeal different from that in section 83G or whether it simply extends the section 83G right of appeal to persons committed for sentence by a magistrate, is a matter that would have to be fully argued.

26.  If it was the former position then a forfeiture order may be within the section 80(1) CPO definition of sentence, it arguably, being an “order made by a court when dealing with an offender.”

27.  We invited the respondent to make submission on this issue.  Ms Lily Ho, Senior Public Prosecutor, referred us to various authorities which suggests that forfeiture orders have been treated by the Court of Appeal as part of the sentence of an offender and capable of being challenged as an appeal against sentence (see HKSAR v Ubah Joel Chidiebere[10], HKSAR v Nlkwo Nnaemeka Darlington[11], HKSAR v Rawe Waikama Magarya[12], and HKSAR v Otieno Millicent Akoth[13].) Ms Ho submitted that this Court does have the jurisdiction to deal with the forfeiture order.

28.  The fact that the Court of Appeal has always treated a forfeiture order as part of the sentence of an offender does not mean that such an approach is correct.  The making of a forfeiture order is regarded as a civil process against property and it need not be the property of a defendant.  It does not deal with the offender personally and it may take place, as happened with this applicant, after the sentencing process has been completed.  It is therefore arguable whether such an order can be construed as part of the sentence imposed by the judge on the applicant.

29.  These are issues that it is not appropriate for us to resolve as the applicant is not legally represented and so we have not had the benefit of full argument on them.  We merely raise them now so that on a future occasion they can be properly addressed.  Furthermore, it being a matter going to the jurisdiction of the Court of Appeal it would be desirable for the Full Court to deliver its judgment on the issue.  For the purpose of disposing of the present application it is not necessary to determine the question of jurisdiction.

30.  Assuming, but not deciding, that we do have jurisdiction, we can find no merit whatsoever in the application.  After receiving legal advice the applicant withdrew her objection to the respondent’s forfeiture application before the judge made the order.  She did so both through her lawyer and personally to the judge.  That was a particular feature of the case.  In those circumstances there is not any error by the judge in making the orders he did.  By withdrawing her opposition to the application for forfeiture, the applicant had in effect “consented” to the making of the forfeiture order to forfeit the US dollars (among other things).  She did so immediately after having had a conference with her lawyer who is a very experienced criminal practitioner.  There was nothing before us to show that the applicant’s mind did not go with her act of “consenting” to the order.

31.  For these reasons, we dismissed the applicant’s application to appeal against sentence and her application for the return of the US dollars to her.