THE QUEEN v. RODOLPHO DE LOS SANTOS

IN THE COURT OF APPEAL

1985, No. 503
(Criminal)

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This is an application for leave to appeal by one Rodolpho de los Santos (the "Defendant") against his conviction by a jury before Hopkinson J. of conspiracy to traffic in a dangerous drug.

2. Three other men were convicted on the same indictment. Their defence was that, despite their apparent agreement, they had no genuine intention to deal in the drugs they promised to supply, but were playing the part only 1n the hope of defrauding those to whom they were apparently selling. Their defence was not accepted by the jury.

3. An application on their behalf for leave to appeal against their convictions was dismissed on the 24th December last year. In the judgment that we then gave we set out in full detail the transactions in question and we need not do 80 again.

4. The application on behalf of the Defendant was at that time adjourned so that those advising him could pursue certain researches in the United States or America. His defence was different, although similar in the suggestion that he was not a genuine conspirator. His contention was that he was well aware that the apparent purchasers, Robert Prezioso and Jake Fernandez, the two main witnesses for the Crown, were members of the United States Drug Enforcement Administration working undercover. He was therefore stringing the suppliers of the drugs along so that in due course, when they were arrested and the drugs confiscated, he would be able to obtain a financial reward; available to him through his friendship with one Ernesto Baiggorria, a professional informant to the United States authorities.

5. The Defendant gave evidence to this effect to the jury below. As the judge pointed out to the jury, they had only his word for it. It had been hoped, for reasons we need not go into, that he would get support for his contention in the cross-examination of Prezioso. But as it turned out that support was not forthcoming. Nevertheless, no application was made for an adjournment to enable any other witness to be called to similar effect.

6. In this application no complaint is made as to any irregularity in the trial itself or as to any defect in the summing-up by the judge. We arc asked instead to give leave so that further evidence may be called later from persons who are now in the United States. To appreciate what their evidence is likely to be, we have looked at affidavits sworn by the proposed witnesses. One is from a Mr. Kramer. He was the defence attorney in the prosecution in America of a certain Colonel Villasenior for illegal arms dealing, a proceeding in which Prezioso and the Defendant are said both to have been involved. However Kramer's evidence appears to be based on records and audio and visual tapes that were then supplied to him, rather upon any personal knowledge of his own. In our view his evidence would not have been admissible had it been proffered at the trial below. It is true that had he then been present, and had he in fact brought with him documents signed by Prezioso, it may have been possible to confront Prezioso with them in cross-examination when he denied knowledge of that particular incident. But whatever answers might then have been give would, of course, have been binding.

7. The other affidavits are from Baiggorria, the professional informer we have just mentioned, and from a Mr. Murphy, an attorney acting in America for both Baiggorria and the Defendant. The evidence of these two would establish firstly, that Murphy had told the Defendant that Fernandez was an undercover agent for the authorities and secondly, that Prezioso had been together with Baiggorria in circumstances from which the Defendant might reasonably have inferred that Prezioso too was an undercover agent. To that extent their evidence would support the Defendant's evidence that he was aware that both were such agents. But it does not necessarily follow that even so his participation in the conspiracy was solely in a similar character. It is, of course, not likely that a person would genuinely undertake transactions in dangerous drugs with those whom he knows to be undercover agents for a foreign state. But against that there must be set the Defendant's silence during the whole course of the transactions, even though once in private he warned the agents that the other conspirators suspected them of being men from Interpol. There is some dispute as to what exactly was said when later, at his request, the agents and an inspector from the Hong Kong Police saw him in Laichikok Prison after his arrest. But even on the Defendant's version of that incident we do not find the indignant protests that the situation naturally demanded.

8. These are cogent factors. In addition there are the Defendant's comments to another undercover agent, one Brad Morgan, that he needed the money from the transaction in question to finance other ventures, and his own evidence in chief, inconsistent with that now proposed, that he did not think that Prezioso and Fernandez knew that he knew what they were. Despite the courteous and most able submission of Mr. Sarony, and even taking the proposed evidence at its present face value, we would not be persuaded to take a different view from that taken by the jury below.

9. There is yet another hurdle that has to be surmounted, namely to show that the evidence was not available at the trial or that there is good reason for its not then being called.

10. The evidence of Baiggorria was then available, and was known to those who at the time were advising the Defendant. It must be that their failure to call him, after Prezioso had disappointed in his cross-examination was a conscious decision taken in what was thought to be the best interests of the Defendant. We have no reason to think that they were not fully appraised of the situation as it then stood.

11. The evidence of Murphy was not available only in the sense that he refused, as he still does, to fly to Hong Kong. If his evidence were to be admitted it would have to be taken on commission. But in any event it would take matters no further than the evidence of Baiggorria.

12. In all the circumstances we are not disposed to admit evidence from the proposed witnesses. There being nothing else put forward in support of the application, the application for leave to appeal against conviction must be dismissed.

13. We deal now with the application for leave to appeal against the sentence of thirteen years which the judge imposed. Mr. Sarony raises two points on behalf of the Defendant. He says firstly that the agreement in question produced no substantive sale. That is true, although we have to observe that it may well have done so had the heroin samples produced been up to the required standard. In our view this was a serious conspiracy whether it produced a sale or not, and in that respect it was a conspiracy which merited the sentence passed.

14. The second suggestion is that the conspiracy was the result of the American agents acting as agents provocateurs. The judge in passing sentence said -

“I am satisfied that they (which included the Defendant) were not entrapped by the special agents ………”

With those actual words we would not disagree, for we take the view that entrapment connotes an innocent or reluctant victim's being induced by the authorities to commit a crime which he would not otherwise have undertaken. We do not find that to have incurred in the present instance. The evidence is not crystal clear, but the initiative for the conspiracy in this case appears overall to have come equally from both sides. However thereafter it does seem to us that the continuance of the conspiracy was actively encouraged by the agents when at times it looked as if otherwise it might peter out. In these circumstances we feel that the Defendant is entitled to some discount of his sentence. We therefore allow the application for leave to appeal against sentence, treat the hearing as the appeal itself and reduce the sentence to one of eleven years.