HKSAR v. CUMPIO SUSAN BATION

HCCC 107/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 107 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.  The defendant pleaded guilty to a single count of trafficking in a dangerous drug prior to trial.  She entered her guilty plea at an appropriate stage of the proceedings that would normally have entitled her to receive a one third discount to her sentence.[1] 

2.  The defendant claimed that at the time of her arrest she assisted or sought to assist the authorities.  This was denied by the prosecution.  The matter became the subject of a Newton hearing after which I ruled against her in a decision handed down on 19 May 2017.  It now falls to this Court to sentence the defendant where a key consideration is whether, as a result of the mitigation advanced on behalf of the defendant having been rejected, the one third discount following a timely plea of guilty should be reduced.

The case history

3.  The defendant was arrested on 15 July 2015 in relation to the offence to which she has now admitted committing.  She was brought before the Magistrate’s Court and eventually on 4 March 2016 she was committed to the Court of First Instance for trial. 

4.  On 13 April 2016, the defendant’s case was fixed for a pre-trial review on 27 March 2017 and for a trial on 20 June 2017 with five days set aside. 

5.  On 7 November 2016, Mr Richard Donald, counsel assigned to the defendant, informed the Court that the defendant wished to plead guilty to the offence and he requested that the case be brought forward so that she could enter an early plea.

The brief facts

6.  The brief facts giving rise to the offence are as follows.  The defendant entered Hong Kong on 15 July 2015 on an inbound flight from Sao Paulo, Brazil, via Dubai, United Emirates.  She was intercepted by Customs officers and searched.  They found that she had two packages attached to her thighs and another package secreted inside her underpants.  The packages consisted of a total of 1,994 g of a powder containing 1,210 g of cocaine.  The estimated retail value of the drugs at the time of seizure was $2,323,010. 

7.  In a brief summary of facts, the defendant admitted and accepted that she was trafficking in the drugs seized.

The defendant’s mitigation

8.  On 18 November 2016, following the defendant’s plea of guilty, Mr Donald mitigated on her behalf.  He informed the Court that the defendant was 53 and a national of the Philippines.  She had previously been married in 1987 when she was 23 but was later widowed in 2005.  She has one son aged 17 who is a resident in the Philippines.  She was educated to high school level, and has worked as a shopkeeper, a restaurant worker and a domestic helper.

9.  Mr Donald presented the defendant’s account as to how she got involved in the offence.  He gave a brief description of her work history in various countries.  He explained that in early 2000 she went to Brazil where she found employment as a domestic helper.  After two years, she met an African male with whom she formed a relationship.  As a result they moved in together.  Sometime later, her boyfriend lost his job and took up dealing in drugs.  His attitude towards the defendant changed, and he began to be physically abusive to her.  She made a report to the police and he was arrested.  However, she continued to live with him but his attitude towards her became worse.  She ended up being hospitalised as a result of the physical abuse he inflicted on her.  She reported him to the police again, but this time she took shelter in a local church.  It appears her boyfriend was incarcerated for a period of time, and after his release, they reconciled and lived together. The abuse continued and he threatened to kill her.  He told her that he was dealing in drugs and offered her the opportunity of transporting drugs abroad with the chance of visiting her family in the Philippines.  Due to the defendant’s eagerness to escape from her situation and return to see her family, she agreed. 

10.  Mr Donald submitted that it was defendant’s intention to get to the Philippines and not to return to Brazil.  He said that the defendant feared for her life.  He also stated that the defendant accepted that she knew what she was doing and that she was breaking the law.  He stressed however, on the defendant’s behalf, that she was not claiming that she was acting under duress.

Additional information

11.  Although this was not contained in the summary of facts, from the records on file, the defendant travelled to Hong Kong on an Emirates Airline flight from Sao Paulo to Dubai on 14 July 2015 and then from Dubai to Hong Kong on 15 July 2015.  She travelled on a Philippines passport which had been issued on 5 November 2014.  It was stamped with an exit from Brazil on 13 July 2015 and had attached to it a visitor’s permit to remain in Hong Kong until 29 July 2015 having arrived on 15 July 2015.

12.  The defendant also had in her possession at the time of her arrest, a hotel booking voucher for one night’s stay for the evening of 15 July 2015, an electronic ticket receipt in the name of the defendant with the billing address, Zarco Viagens E Turismo, Av Ipiranga 919 Loja 1, Galeria Cinerama, Sao Paulo – SP, P/01030-902, a Samsung mobile phone, a memory card, US$358 and flight tickets.  There was also a handwritten note which appears to set out names and phone numbers.  This note was referred to and relied upon by the defendant in the Newton hearing.

The defendant’s claimed cooperation with the authorities

13.  I have mentioned these matters because it was submitted by Mr Donald in his written mitigation that at the time of the defendant’s arrest she fully cooperated with the authorities.  He claimed that she told the officers who arrested her that there was a person outside the airport waiting for delivery of the drugs.  He claimed that she offered to ring the person and to arrange a meeting but the officers refused to take up her offer of assistance.  He further claimed that she advised the officers that she had been accompanied by a minder but they showed no interest whatsoever when told.

14.  Mr Donald also submitted on behalf of the defendant that she was in a position to assist the authorities.  The sentence of the defendant was accordingly adjourned to enable her to provide the assistance she claimed she could to the authorities.  I am told that the information provided by the defendant is not of any use or value.

15.  In light of the matters submitted by Mr Donald concerning the conduct of the officers at the time of the defendant’s arrest, the two Customs officers concerned submitted statements to the Court.  They both denied that the defendant cooperated with them and provided them with information.  One of the Customs officers, stated that that when preliminary inquiries were made with the defendant she said that her final destination was the Philippines and that she was not to deliver the drugs to anyone in Hong Kong.  The Customs officer said that she refused to cooperate with them and later in a video recorded interview refused to answer any questions and did not mention that she had been accompanied by a minder or that there was someone outside the airport waiting for her to whom she was to deliver the drugs.

The Newton hearing

16.  Mr Donald maintained that the defendant had assisted the authorities and requested a Newton hearing on the issue. The hearing took place on 10 May 2017 where evidence was presented by the two Customs officers and the defendant and followed by submissions from counsel. It took the whole day. 

17.  I handed down my written ruling on 19 May 2017 where I analysed the evidence and made findings.  I did not accept the evidence of the defendant.  I found that her evidence was inherently illogical and contradictory and not supported by the contemporaneous records.  I accepted the evidence of the Customs officers.  One of the Customs officers specifically interviewed the defendant in order to ascertain if she would assist them with their investigation.  A document was completed and signed by the defendant confirming that she was not willing to cooperate with them.  In a subsequent video recorded interview, she refused to answer questions which was her right to do so and this included refusing to comment on the note found on her that she testified in the Newton hearing she had tried to explain the contents of it to the Customs officers at the time of her arrest.  

18.  I concluded to the requisite standard that the defendant had not rendered or attempted to render the assistance to the Customs officers as she claimed. 

Unsuccessful Newton hearing

19.  The issue now arises as to whether this Court can or should reduce the normal discount of one third following a timely plea of guilty as a result of the unsuccessful Newton hearing. 

20.  The Court of Appeal in its recent decision of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 revised the practice of affording discounts for guilty pleas.  From the review of the relevant authorities, it is clear that the discount to a sentence following a plea of guilty is in the main to reflect the expression of remorse and the acceptance of responsibility by the offender, and the saving of time and expense to the public in the conduct of a trial. 

21.  As stated by Stock JA (as he then was) in HKSAR v Tong Kim Ching, it is “too well established to require a recitation of authorities that a challenge to the facts, if unsuccessful, may, depending on the circumstances, place a defendant in a position less advantageous than had he pleaded guilty and accepted the true facts of the case.”[2]

22.  Guidance has been provided on the subject of Newton hearings by the English Court of Appeal in the decision of R v Underwood.[3] Judge LJ (as he then was), giving the judgment of the court, emphasised that the essential principle is that the sentencing judge must do justice.[4]  After discussing the procedures that should be followed in a Newton hearing, he said:

“The final matter for guidance is whether the defendant should lose the mitigation available to him for his guilty plea if, having contested facts alleged by the prosecution, the issues are resolved against him. The principles are clear. If the issues are the Newton hearing are wholly resolved in the defendant’s favour, the credit due to him should not be reduced. If for example, however, the defendant is disbelieved, or obliges the prosecution to call evidence from the victim, who is then subjected to a cross-examination, which, because it is entirely unfounded, causes unnecessary and inappropriate distress, or if the defendant conveys to the judge that he has no insight into the consequences of his offence and no genuine remorse for it, these are all matters which may lead the judge to reduce the discount which the defendant would otherwise have received for his guilty plea, particularly if that plea is tendered at a very late stage. Accordingly, there may even be exceptional cases in which the normal entitlement to a credit for a plea of guilty is wholly dissipated by the Newton hearing. In such cases, again, the judge should explain his reasons.”[5]

23.  In HKSAR v Wong Suet-hau [2002] 1 HKLRD 69, Stuart-Moore VP (as he then was), giving the judgment of the Court, in addressing the issue of self-consumption when sentencing for trafficking in a dangerous drug, said that where the mitigation has necessitated the holding of a Newton hearing, after which the mitigation was rejected, the court will be entitled to reduce, by an amount appropriate to the circumstances, the discount normally given, following a plea of guilty.[6] 

24.  This approach was recently followed in a similar case also involving the issue of self-consumption in HKSAR v Law Num Chun [2014] 5 HKLRD 500.[7]

Submissions on sentence following an unsuccessful Newton hearing

25.  Mr Donald acknowledges that as a matter of discretion, a sentencing court is entitled to reduce the usual discount of one third following a guilty plea as a result of an unsuccessful Newton hearing.  He submits that the amount of the reduction in the discount will depend on various circumstances, including the length of the inquiry, the number of witnesses called to give evidence and so on. 

26.  Mr Donald submits however that the relevant authorities on this issue mainly involve a dispute as to how much of the drugs in question were for self-consumption which essentially involves a challenge of the facts of the offence.  In such a case, if the defendant is disbelieved, he submits that this shows a lack of genuine remorse and therefore may be reflected in a reduction to the discount for a plea of guilty.  He argues that the authorities can be distinguished from the present case because the defendant has agreed to all the facts in the prosecution’s summary of facts.  He further argues that the defendant has therefore shown genuine remorse for the offence. He submits that the Newton hearing was held in order for the defendant to establish her mitigation regarding her willingness to cooperate with the authorities which went to show her “added remorse”.  He further submits that accordingly there is no reason to reduce the defendant’s entitlement to a one third discount for her guilty plea.  He explains that rather than disputing the facts, the defendant was trying to obtain an extra discount for her willingness to cooperate with the authorities for which she should not be penalised if not believed.  In other words, she was not disputing the facts of the offence but rather the facts post her arrest.

27.  Mr Lenny Cheng, for the prosecution, submits that where the defendant seeks to dispute facts, or attempts to show his or her willingness to cooperate with the authorities, the ultimate aim of the defendant remains the same, namely to seek further reduction of the sentence in addition to the normal entitlement to a discount for a plea of guilty.  He further submits that the defendant was disbelieved following a full day Newton hearing, with two witnesses being called and cross-examined, and her conduct in taking a stance which in the end did not commend itself to the Court conveyed that she had no proper insight into the consequences of her offence and no genuine remorse for it. 

28.  In response to the defence argument that the Newton hearing was merely to show “added remorse”, Mr Cheng argues that this seeks to make a distinction which is artificial and without substance.  He argues that whether the defendant seeks to dispute facts, or attempts to show a willingness to cooperate with the authorities, the ultimate aim of the defendant remains the same, namely to seek a further reduction of sentence in addition to the normal entitlement to a discount for a plea of guilty.  He points out that the outcome of having conducted a Newton hearing is no different whether disputing facts or wishing to advance further mitigation because in both instances witnesses are called, judicial resources are used and public funds are expended. 

Discussion

29.  In R v Tolera [1999] 1 Cr App R 29, Lord Bingham CJ (as he then was) addresses the procedures that should be followed when a defendant who pleads guilty seeks to be sentenced on a factual basis different to that asserted by the prosecution.  He makes the point that if the prosecution do not accept the defence account, and if the discrepancy between the two accounts is such as to have a potentially significant effect on the level of sentence, then consideration must be given to the holding of a Newton hearing to resolve the issue.  He adds that in so doing the defence is asking the court to sentence on a basis other than that disclosed in the prosecution case. 

30.  In the present case, the defendant pleaded guilty but disputed the facts advanced by the prosecution that she had not expressed a willingness to cooperate with the authorities.  It required the Court to hold a Newton hearing which was resolved against her, and in the circumstances the defendant has therefore lost the benefit of the remorse apparently shown by her guilty plea.  It is within the Court’s discretion to depart from the practice of granting a one third discount that would normally follow a timely plea of guilty if the circumstances warrant it and it is in the public interest to do so.  The defendant was disbelieved in relation to the mitigation she advanced and unnecessarily occupied the Court and those involved in addressing the issue of her willingness to cooperate with the authorities in a Newton hearing.  It was an unmeritorious challenge that was doomed to fail.  There was no substance to the assertion that the defendant assisted or tried to assist Customs officers at the time of her arrest. 

31.  There is no doubt that a sentencing court has a wide discretion when sentencing an offender.  Like all discretions, it must be exercised judicially.  There is a large body of sentencing principles and guidelines to assist the court in its sentencing exercise. 

32.  It is an established principle that if an offender challenges the facts of the case, which has been unsuccessful, depending on the circumstances, this may have an impact on the sentence to be passed on the offender.  In the circumstances where an offender has pleaded guilty and seeks to contest matters by way of a Newton hearing, whether such matters relate to the facts of the case or mitigating factors which seek to reduce the sentence to be passed on the offender, depending on the circumstances, it may also result in a reduction to the discount to be given following a plea of guilty.

33.  Mr Cheng has helpfully drawn my attention to a recent decision of the Court of Appeal of HKSAR v Mathews Rogers Raphael, CACC 41/2016, 21 April 2017, unreported.  An issue on appeal was whether the sentencing judge was entitled to reduce the discount that would otherwise have been imposed following a guilty plea, where the appellant sought to establish that there existed special circumstances to warrant him receiving an additional sentence discount in a Newton hearing.  The judge ruled against the appellant, having rejected his evidence.  McWalters JA, giving the judgment of the Court, said:

“26. The judge conducted a Newton hearing in which she heard evidence over the course of two days and at the end of which she delivered her ruling, saying that she disbelieved the applicant. It is important to appreciate that by her ruling the judge found that the applicant had lied in order to gain a sentencing discount to which he was not entitled. Apart from being dissatisfied with the judge’s finding, the applicant has not been able to show that she erred in making it.

27. In these circumstances, there is nothing improper in the judge not awarding the applicant the full one-third discount for his guilty plea. Her decision to reduce the one‑third discount is consistent with legal principle and established authority. The amount by which she reduced it was a matter for her discretion and was certainly within the range of reductions for a failed Newton hearing. Indeed, given her finding, the judge would have been perfectly entitled to reduce the discount further.

28. In this regard, it is interesting to note that in the latest Definitive Guideline on Reduction in Sentence for a Guilty Plea issued by the Sentencing Council for England and Wales the reduction of the discount would have been much greater. The relevant part of the Definitive Guideline states:

“F2. New Hearings and special reasons hearings

In circumstances where an offender’s version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction.””

34.  I therefore find that, depending on the circumstances, I am entitled to reduce the discount that would otherwise be given following a guilty plea for an unsuccessful Newton hearing.  In the circumstances and for the reasons I have given, I will reduce the defendant’s one third discount for her guilty plea to 29 percent.

The sentence of the defendant

35.  Having resolved the issue of assistance to the authorities against the defendant, Mr Donald acknowledges on the defendant’s behalf that her only viable mitigation is her guilty plea.

36.  The quantity of cocaine that the defendant was attempting to bring into Hong Kong was very large, namely, 1,210 g of cocaine. For this quantity of cocaine, a guideline starting point of 23 years’ imprisonment is suggested in the tariff case of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.  It is also suggested in that case that where an international element is involved, as we have in the present case, in that the defendant has brought drugs into Hong Kong from abroad as part of an international operation, the starting point should be enhanced for this aggravating factor which for amounts above 1 kg will be in addition less than 2 years’ imprisonment.

37.  Even though an impassioned plea has been made on behalf of the defendant for a lenient sentence because of her personal circumstances and situation, it has been firmly stated by our appellate courts that this will count for very little, if anything at all, because of the grievousness of the offence of trafficking in large quantities of dangerous drugs. 

38.  In the circumstances, and in an effort not to impose a crushing sentence on the defendant given that the starting point is already very high, and the enhancement for the international element may bring the sentence to a level where it is not just and proportionate to the overall culpability of the offender’s conduct, I impose a starting point of 24 years’ imprisonment which I will reduce by 29 percent for the defendant’s plea of guilty to 17 years’ imprisonment.  As I have already noted, the one third discount was reduced to 29 percent for the unsuccessful Newton hearing.

Conclusion

39.  The defendant is sentenced to 17 years’ imprisonment.