HKSAR v. RODRIGUEZ CARRENO SAMUEL

CACC 126/2018

[2018] HKCA 836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 126 OF 2018

(ON APPEAL FROM HCCC NO 334 OF 2017)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Judgment of the Court):

1.  We had before us an application for leave to appeal against sentence out of time. We refused the application to extend time to give notice of an application for leave to appeal sentence and dismissed the appeal. We said we would hand down our reasons for our judgment in due course. This we now do.

2.  On 23 March 2018, the applicant was sentenced to a total term of imprisonment of 12 years by M Poon J (the judge), following his pleas of guilty in the Magistrate’s Court on 11 September 2017 to one count of trafficking in a dangerous drug (Count 1), one count of possession of a dangerous drug (Count 2) and one count of using a false instrument (Count 4).

3.  On 10 May 2018, the applicant filed a notice of application for an extension of time to give notice of application for leave to appeal his sentence on Counts 2 and 4.  He complained that his sentence on each of the two counts was too high.  He subsequently submitted a letter to the Court dated 13 August 2018 in which he made three general complaints about his sentence.  First, the sentence on Count 2 was too heavy as he only possessed traces of cocaine.  Secondly, the sentence on Count 4 did not take into account that he did not have the false instrument in his possession and only used it innocently.  Thirdly, the enhancement of his sentence for being a Form 8 recognizance holder was too high.

4.  At the hearing, he produced a letter addressed to the Court dated 27 August 2018 which he said he had sent but it was returned to him.  In the letter, he sought to substantiate his application for an extension of time.  He explained that the day after his sentence, 24 March 2018, he informed a prison officer that he wanted to appeal his sentence but was told he should do so when he transfers to Stanley Prison on 26 March 2018.  He said that due to his placement in a special unit and public holidays, he did not see the welfare officer until late.  He acknowledged he received a Form XI on 14 April 2018, which he completed and handed in on 19 April 2018.  He said he was called for an interview with the Superintendent on 25 April 2018, after which he thought his form had been sent.  However, he claimed that the authorities did not send the form.  We note that his application for leave to appeal against sentence out of time was accompanied by an affirmation from him dated 3 May 2018.  In the affirmation, he claimed that his application was out of time because his lawyer sent a letter to him on 3 April 2018 but that he had to wait until he received assistance from a welfare officer about his case.  As required, he had 28 days in which to file a notice seeking leave to appeal, that is, by 20 April 2018. 

5.  The judge in her comprehensive reasons for sentence set out the facts of the case which also involved another defendant. 

6.  The applicant is a Colombian male who is now 46 years of age.  He came to Hong Kong in 2006 and has remained here ever since. He has one previous conviction of a similar offence of trafficking in a dangerous drug in 2007 for which he received a sentence of 10 years’ imprisonment.  He was discharged from a prison on 11 July 2013, and issued with a Form 8 recognizance on 5 September 2013, having made a non-refoulement claim.

7.  The other defendant was also a Colombian male who came to Hong Kong on 18 May 2016 as a tourist.  He was permitted to stay until 16 August 2016. 

8.  The offences to which the applicant pleaded guilty took place on 10 August 2016.  On 9 August 2016, a parcel had arrived in Hong Kong from Venezuela.   The airway bill of the parcel declared that it contained a “mixing console”.  It was addressed to a person by the name of “Mr Irfan Ahmed Minas” with an address in Kowloon and a local mobile telephone number.  The parcel was checked but nothing suspicious was found.  It was therefore released to FedEx for delivery to the consignee.  Customs officers observed the two men going to the address provided on the airway bill.  A FedEx courier delivered the parcel to them at the address.  The applicant produced a false Form 8 recognizance in the name of the consignee and collected the parcel.  The two men were observed leaving the building, with the applicant carrying the parcel, who later handed the parcel over to the other defendant, after which they separated.  The two men were intercepted by Customs officers. The address in question was the residential address of the applicant, which when searched by Customs officers, traces of cocaine were found.  The false Form 8 recognizance that was used to collect the parcel bore a photograph of the applicant.  The parcel had inside it a “mixing console” in which was hidden a solid containing 409 grammes of cocaine narcotic.  The estimated street value of the drugs was $725,988.

9.  For the drug trafficking offence, the judge adopted a starting point of 15 years’ imprisonment which was in accordance with the guideline tariffs.  She enhanced the starting point by 1 year to reflect the aggravating factor of the international element, and by a further 15 months to reflect the fact that the applicant was a Form 8 recognizance holder at the time of the offence. 

10.  Of the enhancement for the international element, the judge was obviously guided by the broad guidelines in HKSAR v Chung Ping Kun, CACC 85/2014, 2 July 2014, unreported, where a level of enhancement of 6 months to 1 year is suggested between 250 and 500 grammes of heroin, cocaine and Ice narcotic.  Even though the applicant did not seek to appeal his sentence on Count 1, at the hearing, he questioned the enhancement for the international element.  This had not been previously mentioned.  The quantity of cocaine narcotic was 409 grammes which on a strict arithmetic calculation would attract a level of enhancement of 9.8 months.  The judge enhanced his sentence by 12 months, which is slightly higher than the arithmetic calculation of the suggested broad guidelines.  

11.  Of the enhancement for being a Form 8 recognizance holder, the judge appropriately referred to, and followed HKSAR v Shah Syed Arif [2016] 4 HKLRD 664; HKSAR v Fitri, CACC 265/2016, 5 April 2017, unreported; and HKSAR v Mahabul Alam Khan, CACC 116/2016, 8 September, unreported. 

12.  The final starting point of 17 years and 3 months’ imprisonment was reduced by one third for the applicant’s guilty plea to 11 years and 6 months’ imprisonment.  No complaint can be made for the sentence passed by the judge for this offence, which properly incorporated the aggravating factors that she identified.  There was also the fact that this was the second time that the applicant had been convicted of the serious offence of drug trafficking within a relatively short period, for which he could very well have received further enhancement to his sentence as a repeat offender (subject to the totality principle for the enhancements to the sentence).  We were of the view, therefore, that in light of all the circumstances the sentence on Count 1 should not be disturbed.

13.  For the possession of a dangerous drug, the judge adopted a starting point of 18 months’ imprisonment which she reduced by one third for the applicant’s guilty plea to 12 months’ imprisonment.  She ordered that this sentence be served concurrently with the sentence of the drug trafficking offence.  Whilst the starting point may be viewed on the high side, given it concerned traces of cocaine, any complaint in this regard was rendered nugatory by making the sentence concurrent with the sentence for the drug trafficking offence.  See HKSAR v Mok Cho Tik [2001] 1 HKC 261. 

14.  For the false instrument offence, the judge adopted a starting point of 15 months’ imprisonment which she reduced by one third for the applicant’s guilty plea to 10 months’ imprisonment, of which 6 months was ordered to be served consecutively to the sentence for the drug trafficking offence.  The judge took into account that this was a separate and distinct offence from the drug offences, which, after applying the totality principle, she made partially consecutive to the sentence for the drug trafficking offence.  The assertion by the applicant that he did not have the false Form 8 in his possession and only used it innocently is totally contradicted by the admitted facts.  The applicant admitted that he produced the false Form 8 to the FedEx courier knowing it to be false and in order to induce him to hand over the parcel containing the drugs.  No complaint can be made about the approach taken by the judge in sentencing the applicant which was in accordance with relevant sentencing authority and principles.  See HKSAR v Li Chang Li [2004 – 2005] HKCLRT 193.

15.  The end result was that the judge passed a sentence of 12 years’ imprisonment on the applicant for the offences he committed.

16.  In determining an application for an extension of time, the court will consider the period and reasons for the delay, the likelihood of a successful appeal, if the extension is granted, and whether by refusing leave, the Court is shutting out a substantial and plainly arguable ground of appeal.  See R v Wong Kai Kong & Anor [1990] 1 HKC 279, at 280I-281D and HKSAR v Wilson Alberto Corredor Medina and Anor, CACC 296/2007, 31 January 2012, unreported, at paragraph 12.  Whilst the period of delay in filing the application for leave to appeal against conviction was not great, we did not accept the applicant’s explanation.  In any event, having considered the grounds of his appeal against the sentences on Counts 2 and 4, we were also of the view that they are devoid of merit.  We add that his complaint about his sentence on Count 1, even though it was not a ground of appeal, did not warrant this Court interfering with it.

17.  In light of the foregoing reasons, we refused the application to extend time in order to enable the applicant to file an application for leave to appeal against sentence and we dismissed the appeal.