HKSAR v. INZA MADUENO ANDREW ANTHONY

CACC 6/2020

[2020] HKCA 727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 6 OF 2020

(ON APPEAL FROM HCCC NO 337 OF 2016)

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J U D G M E N T

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Introduction

1.  The applicant was charged with trafficking in a dangerous drug, , namely 700 millilitres of a liquid containing 455  grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He pleaded guilty to the charge in the Magistrate’s Court and was committed for sentence in the Court of First Instance. 

2.  On 14 September 2016, the applicant appeared before Wong J (the judge), who sentenced him to 11 years and 8 months’ imprisonment.

3.  On 13 January 2020, 3 years and 4 months after he was sentenced, the applicant filed a notice of application for leave to appeal against sentence out of time.  He claims the delay in filing his application was because he was looking for grounds of appeal.  He said he recently found a case which was similar to his in which the defendant received a term of imprisonment of 10 years.

The brief facts

4.  The facts outlined to the judge and admitted by the applicant when he pleaded guilty were as follows.  On 24 February 2016, the applicant, a Peruvian national, arrived in Hong Kong from Amsterdam, although his journey originated in Lima, Peru.  He was detained on arrival as it was suspected he had items concealed in his body.  He was taken to the North Lantau District Hospital where it was confirmed that he had foreign objects in his body cavity.  He was transferred to the Queen Mary Hospital and subsequently discharged 52 packets which were later confirmed to contain the dangerous drug particularized in the charge.  The estimated retail value of the cocaine at the time of the offence was $488,215. 

5.  In a subsequent record of interview, the applicant admitted that a friend, by the name of Luis, had asked him to take the drugs to Hong Kong, for which he would be paid US$4,000 if successfully delivered.  He said that three females had invited him to their home where he swallowed the packets of drugs, which he was aware contained cocaine in liquid form.  He was instructed that he was to indicate his successful arrival in Hong Kong via WhatsApp, after which he would be contacted. 

The mitigation

6.  In mitigation, it was submitted that the applicant was 22 years of age at the time of the offence.  It was said that his mother had passed away when he was 18 years of age and his father at the time disappeared.  He had undertaken study at university in the field of engineering and supported himself and his younger brother, who was attending school, with a part-time job.  It was also said that the applicant encountered financial difficulties and borrowed money, which he was unable to repay.  He was then approached by two women who told him that he would receive US$4,000 if he took illegal items into Hong Kong.  He agreed to swallow the drugs and bring them to Hong Kong.  It was claimed that when he arrived in Hong Kong, he called a man in Peru, indicating that he wished to withdraw but the man pressured him into continuing with the delivery. 

7.  It was finally submitted that the applicant was remorseful and that he had participated in Father John Wotherspoon’s anti-drug campaign.  To this end, he had provided information to his family and brother so that they would convey his message through social media. 

The sentence

8.  In sentencing the applicant, the judge applied the sentencing guidelines laid out in R v Lau Tak Ming [1992] HKLR 370 and AG v Pedro Nel Rojas [1994] 2 HKCLR 69, and adopted a starting point of 16 years and 6 months’ imprisonment, which he enhanced by 12 months for the international element.  The judge reduced the notional starting point of 17 years and 6 months’ imprisonment by one third for the applicant’s guilty plea to 11 years and 8 months’ imprisonment. 

9.  The judge followed the guidance in HKSAR v Akinyi Grace Sylvia, unrep., CACC 324/2015, 5 May 2016 and decided that the issue of any reduction to the applicant’s sentence for his participation in Father Wotherspoon’s campaign was a matter that should be raised with the Executive at an appropriate time.  That was then, as is now, an option available to a sentencing court to take in addressing a defendant’s participation in Father Wotherspoon’s anti-drug campaign.

The application for extension of time

10.  The application is significantly out of time.  No valid grounds have been provided to justify the inordinate delay.  This Court can extend time in appropriate circumstances as explained in R v Wong Kai Kong and Another [1991] HKC 279.  Factors that are usually taken into account include, the length of the delay; the reasons for the delay; the bona fides of the application; and the grounds of the appeal.  It is usual for a court to consider whether there is any merit to the appeal, in order to ensure it is not shutting out a plainly arguable ground which the applicant could and should have mounted. 

Reasons for the delay

11.  The applicant provides no good reason for the inordinate delay in making this application.  His only explanation is that he was looking for good grounds of appeal.  However, if there was an error or mistake made with his sentence, that would have been apparent to him and his legal advisers at the time of sentence.  It seems his notion of looking for good grounds of appeal was finding a case that was similar to his but where the sentence was lower.  Time and again this Court has said that no two cases are alike and little, if any, utility is seldom gained by comparing cases.  The issue is solely whether the sentence passed was wrong in principle or manifestly excessive.  What another defendant received by way of sentence is not the test.

12.  The applicant referred to the case of HKSAR v Romero Cunis Liz Evelin, HCCC 403/2016, 28 February 2017.  He submits this was a similar case to his and the defendant received a sentence of 10 years’ imprisonment.  There are immediately two observations to make about the applicant’s reliance on this case.  First, the defendant was sentenced on 28 February 2017 and this does not explain the delay in making this application. Secondly, the defendant was sentenced to 10 years and 6 months’ imprisonment. 

13.  This other case involved a Peruvian female transporting drugs into Hong Kong in similar circumstances to the applicant.  I note that the judge in that case adopted a starting point for 466 grammes of cocaine narcotic of 16 years, whereas on a strict arithmetic calculation it should have been 16 years and 8 months’ imprisonment.  The judge enhanced the sentence by 6 months for the international element when it could have been higher.  She reduced the sentence by one third for the defendant’s guilty plea to 11 years imprisonment, and gave a further discount of 6 months for the defendant’s participation in Father Wotherspoon’s anti-drug campaign.  The defendant therefore received a sentence of 10 years and 6 months’ imprisonment.  Admittedly, the defendant in that case was treated generously in the circumstances, but the judge also allowed a reduction to the defendant’s sentence of 6 months for participation in Father Wotherspoon’s campaign.  However, such a reduction was not in accordance with the current guideline laid out in HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.

The merits of the appeal

14.  The issue for my consideration is whether I am shutting out an obvious and serious case that warrants the consideration of the Court of Appeal.  The question is whether an injustice has taken place with the sentence passed on the applicant, in the sense that the sentence passed is wrong in principle or manifestly excessive, that provides him with a plainly arguable ground or grounds of appeal that should go before the Court of Appeal for its consideration. 

15.  In assessing the merits of the applicant’s appeal, it needs to be borne in mind that he was sentenced in September 2016, in accordance with the applicable sentencing principles.  Since then, the Court of Appeal has addressed how a sentencing court should consider and treat a defendant’s participation in Father Wotherspoon’s anti-drug campaign when he or she is sentenced.  See Kilima Abubakar Abbas where participation in Father Wotherspoon’s campaign was a matter in the sentencing court’s discretion to allow a token discount of no more than 3 months.

16.  On a strict arithmetical calculation, the starting point for trafficking in 455 grammes of cocaine is 16 years and 4.5 months’ imprisonment.  It would appear that the judge has adopted a starting point that was slightly higher of 16 years and 6 months’ imprisonment.  The enhancement for the international element was high but within the broad guidelines as laid out in HKSAR v Abdallah Anwar Abbas [2000] 2 HKC 197; and HKSAR v Chung Ping Kun [2014] HKC 106. 

17.  Whilst it is acknowledged that the applicant did not receive any reduction for his participation in Father Wotherspoon’s campaign, that has to be assessed as to whether he has made a meaningful contribution to the campaign.  It was decided by the judge that the matter be left for the Executive to address and that course is still open to the applicant to appropriately pursue.  See HKSAR v Perez Peraza Zuleyma Coromoto, unrep., CACC 162/2018, 22 March 2019, at [16]; and HKSAR v Rwakibale Aheebwa Peter, unrep., CACC 171/2017, 4 December 2018, at [20] and [21].

18.  Whilst the starting point and the enhancement were slightly on the high side, they were within the range suggested by the relevant guideline, and at most would warrant a correction that would amount to tinkering.  This would not justify granting leave to appeal against a sentence.  See HKSAR v Leung Chi Wai, [2018] 5 HKLRD 237, at [23].  It cannot be said that the applicant’s sentence is wrong in principle or manifestly excessive and his complaint about his sentence is without merit.

Conclusion

19.  For the reasons I have given, I refuse the applicant an extension of time to file an application for leave to appeal against his sentence.  I would have in any event refused leave to appeal against his sentence as I find no merit in his complaint. 

20.  I remind him of his right to renew his application before the Court of Appeal and also remind him that should he do so, and should the Court of Appeal find no merit in his renew application, the Court of Appeal has the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.