HKSAR v. HOLGUIN SANCHEZ DIANA MILENA

CACC 439/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 439 OF 2014

(ON APPEAL FROM DCCC 842 OF 2014)

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REASONS FOR JUDGMENT

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

Introduction

1.  The applicant was convicted by District Court Judge Sham on 18 December 2014 following her pleas of guilty to two charges.  The first charge was unlawful trafficking in a dangerous drug and it alleged that on 10 July 2014 the applicant unlawfully trafficked in 8.43 grammes of a powder containing 4.18 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The second charge was breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115.  The applicant was sentenced to 22 months’ imprisonment in respect of the first charge and one month’s imprisonment in respect of the second charge, to be served consecutively, so that her total sentence was 23 months’ imprisonment. 

2.  Notwithstanding that the applicant pleaded guilty to these charges she applied for leave to appeal against both her conviction and sentence.  These applications for leave were heard and refused by Lunn VP on 25 June 2015.  On 7 July 2015, the applicant renewed her application for leave to appeal against sentence only after refusal by the single judge.  At the hearing we refused her application and said we would hand down our reasons for doing so at a later date.  These are our reasons.

The Summary of Facts

3.  In tendering her pleas of guilty, the applicant admitted a ‘Summary of Facts’ as the basis for the court accepting those pleas and for the purpose of sentencing her.  The applicant, a Columbian, entered Hong Kong as a visitor on 10 July 2013 and was permitted to stay until 8 October 2013, but in contravention of the condition of her stay, she remained in Hong Kong after that date.

4.  On the evening of 10 July 2014 police officers intercepted the applicant at Lok Hing Lane and, during a search of her, found 13 transparent re-sealable plastic bags in her handbag.  These plastic bags were subsequently found to contain 8.43 grammes of a powder containing 4.18 grammes of cocaine.  Having been arrested and cautioned, the applicant said, “It is cocaine for my own consumption”.  In a subsequent video-recorded interview, she admitted that she had bought the dangerous drugs, “For my consumption - for the consumption of myself and my friends.”  The applicant added that she had just purchased the cocaine and was going to a party with her friends where they would consume the cocaine together.  She said that, “her friends contributed money to purchase the cocaine.”  The applicant accepted that “she possessed the dangerous drugs seized for the purpose of trafficking” as set out in the Summary of Facts.

5.  The estimated street value of the cocaine was $8,843.

6.  The applicant accepted that she had entered Hong Kong on 10 July 2013 as a visitor with permission to stay until 8 October 2013.  In consequence, by her presence in Hong Kong on 10 July 2014 she had contravened her condition of stay in Hong Kong.

The mitigation

7.  The applicant, aged 36, was born in Columbia.  She is single and has a daughter aged 9.  In mitigation, it was submitted on the applicant’s behalf that her case was one of social trafficking.  Her counsel told the court that at about 2 pm on the day of the offence a male named Ricardo gave the applicant $10,000 to purchase the 13 packets of cocaine from a black man at Hollywood Road.  This was money belonging to her friends and she intended to share the drugs with them when she joined them later that evening at a barbeque party.  After purchasing the drugs she waited at the sitting-out area for her friend to call her and inform her of the time and venue of the barbeque party which she claimed was going to last for 3 days. 

8.  In a letter that the applicant wrote to the court, she described how she ended up in Hong Kong doing business on the internet as she felt unsafe in her own country because she owed money to persons there.  She admitted that she was going to consume drugs with her friends and begged for forgiveness.

The Reasons for Sentence

9.  In respect of the submission made on behalf of the applicant that she was concerned only in “social trafficking” of the dangerous drugs, the judge said he found that claim rather dubious but in any event he did not regard it, if it was true, as mitigating the applicant’s culpability.  He said:

“First of all, in terms of harm caused to the community, there is no difference between social trafficking and commercial trafficking, but if the court accepts this is a case of social trafficking, that would mean some of the drugs would be consumed by the defendant herself.”

10.  However, on the issue of whether or not some of the dangerous drugs were for her own consumption, the judge accepted that he could not rule out this possibility.

11.  Having noted that the guidelines for sentence for unlawfully trafficking in amounts of up to 10 grammes of cocaine provide a sentencing range of 2 to 5 years’ imprisonment, the judge adopted a starting point for sentence of 3 years and 3 months’ imprisonment.  In respect of the second charge the judge adopted a starting point of one and a half months’ imprisonment.

12.  The judge accepted that part of the drugs were for the applicant’s own consumption and to take account of this mitigating factor he afforded the applicant a discount of six months’ imprisonment.  The judge then discounted the resulting term of 33 months’ imprisonment, by one-third to reflect her plea of guilty.  In the result, the judge sentenced the applicant to 22 months’ imprisonment on the first charge.  Discounting the sentence for the second charge, for her plea of guilty, the judge sentenced the applicant to one month’s imprisonment on that charge.

13.  Noting that the two offences were different in nature, the judge ordered the two sentences to run consecutively.  But this route, the judge reached a total sentence of 23 months’ imprisonment and this was the sentence he imposed on the applicant.

Grounds of appeal of the renewed application

14.  In the Notice of Renewal of Application after Refusal by the Single Judge (Form XIII) dated 7 July 2015, the applicant did not give any reasons for this application for renewal.

15.  In a letter to the court dated 14 September 2015, the applicant stated that “she felt cheated and unhappy about the trial as well as the result of the trial”. In gist, she complained that she had not been provided with the chance to give evidence in respect of her business and self-consumption of dangerous drugs.  She said she wished to adduce evidence to prove she was not a trafficker or a drug dealer.  The applicant also referred to other drug sentencing cases to support her contention that her sentence was too high.

16.  At the hearing the applicant repeated her reliance on her evidence of her business activities and the cases she referred to us for comparative sentencing purposes. 

Discussion

17.  The starting point of 39 months’ imprisonment stipulated by the judge accords with the guidelines articulated in the judgments of this court in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming [1990] 2 HKLR 370.  Based solely on the quantity of narcotic this was a perfectly proper starting point.

18.  The judge was entitled to give the applicant a discount from  this starting point in order to reflect his acceptance that part of the dangerous drugs were for her own consumption.  The range of discount to be afforded to a defendant in these circumstances is fact sensitive and lies within the range of 10 to 25% as articulated in the judgment of this court in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  The discount of about 15% afforded to the applicant by the judge for this mitigating factor was within the range.  Unless a sentencing judge has erred in principle or the exercise of his sentencing discretion can otherwise be shown to have miscarried an appellate court will not interfere with his assessment of the appropriate discount to reflect the element of self‑consumption.  In the present case it is clear that there is no error of principle and no basis for saying that the sentencing discretion has miscarried.

19.  In the present case, the Applicant admitted that she would share the cocaine with about 10-12 of her friends at a party.  It was said on her behalf in mitigation that only a quarter, that is, about 3 out of the 13 packets of drugs, were for her self-consumption.  The trafficking activity was clearly premeditated and involved the applicant in purchasing $10,000 worth of drugs to supply to a significant number of drug users present at a party.  Although the applicant was a person of a clear record, the circumstances of her trafficking renders her offence a serious one and characterising it as social trafficking in no way lessens her culpability. 

20.  At the applicant’s trial the judge expressed doubts about the applicant’s claim to be running a business here in Hong Kong.  This is hardly surprising as transporting drugs to a party in order to distribute them to those present has all the hallmarks of commercial trafficking.  The judge’s comments were made in the course of the applicant’s counsel’s submission that the applicant’s conduct amounted only to social trafficking for which the applicant should be sentenced more leniently.  As a consequence the applicant seems to think that she has been disbelieved in respect of her claim to be running her own business here and has been sentenced as a commercial trafficker.  This is simply not so.  As Lunn VP noted his judgment refusing leave, the doubts harboured by the judge played no role in the sentencing process.  The judge concluded, and rightly so, that on the facts of this case a claim of social trafficking would not entitle the applicant to any further discount or greater leniency. 

21.  The judge’s approach was in accordance with the law as set out in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69.  In giving the judgment of the court Stuart-Moore VP said at pages 83-85:

“It is the very fact of supply or, in the case of couriers and storekeepers, making possible the supply to others, which in trafficking, whether for commercial gain or not, needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind them will, in our view, only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked …

It has to be borne in mind that the evil behind all aspects of trafficking in drugs, which the courts have a duty to deter, is ultimately the supply of dangerous drugs to the public, whether or not this is done for financial gain. Looked at in another way, we believe that the major concern of the law-abiding community in Hong Kong, aware of the immense harm and suffering caused by drugs and by those who are engaged in trafficking them, is principally directed at the availability of drugs which traffickers make possible by their activities rather than the profits which traffickers are able to make from what they have done …

The courts have a duty to keep these concerns uppermost in mind when deciding the appropriate level of sentence for drug traffickers, whether or not they have profited by their activity.

In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking.”

22.  The fact that the applicant was not selling the drugs to others but merely supplying them, does not entitle her to any special sentencing consideration.

23.  We have examined the drug cases to which the applicant has referred us but they do not assist her in establishing excessiveness in her sentence.  In respect of the case of HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69, which concerned the drug “ice”, no discount was allowed for self-consumption and in the case of HKSAR v Ramirez [2015] 1 HKLRD 966 the issue of a self‑consumption discount was not relevant to the trafficking charge.  The other two cases on which the applicant relies, HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558 and HKSAR v Ngai Ho Ting [2013] 4 HKC 547 (another “ice” case) turn on their own particular facts.  Cases involving different types of drugs will inevitably attract different sentences.

Loss of time

24.  A copy of our Reasons for Judgment was provided and translated to the applicant and she was then invited to address us on why we should not make an order under section 83W(1) of the Criminal Procedure Ordinance, Cap 221, that part of the time that she has been in custody for these offences pending the determination of her application for leave to appeal should not be reckoned as part of her sentence.  In reply she apologized to the court and expressed her anxiety at not delaying her release, which is in 3 weeks time. She said she was relying on other drug sentencing cases referred to her by fellow inmates which she thought provided her with a good basis for appeal. 

25.  On the leave hearing the applicant was advised by Lunn VP that although she had a right to renew her application for leave to appeal against sentence, if she did so and if the Court of Appeal came to the conclusion that there was no justification for the renewal, it has power to order loss of time.  There is also a note on the Form XIII that alerts an applicant to this power.  At the beginning of this hearing we reminded the applicant again of this power and, conscious of the short period of time remaining before her release, emphasized that should we exercise the power it would impact upon her release date.

26.  As we made clear in our Reasons for Judgment in dismissing the applicant’s renewed application there was no merit whatsoever in any of her complaints.  The applicant enjoyed the benefit of very detailed reasons from Lunn VP explaining how her sentence was calculated and why her complaints in respect of it were without merit.  Furthermore this court has repeatedly said that referring it to sentences imposed by other courts in different cases will not, on its own, be sufficient to establish excessiveness.  There has been a regrettable tendency for applicants in drug cases to trawl the prison population for examples of sentences they believe are more lenient than their own and pray such sentences in aid when asserting that their sentence is excessive.  This is a pointless exercise for the applicant and a waste of time for the court.

27.  Accordingly, we ordered under section 83W(1) that one month of the time during which the applicant has been in custody pending determination of her appeal shall not be reckoned as part of the term of the sentence to which she is for the time being subject.

Conclusion

28.  For these reasons we refused the applicant’s renewed application for leave to appeal her sentence and ordered under section 83W(1) of the Criminal Procedure Ordinance, Cap 221, that one month of the time that the applicant has spent in custody pending the determination of her appeal should not be reckoned as part of the term of the sentence to which she is for the time being subject.