HKSAR v. CASTILLO CAICEDO TERESA

CACC 212/2017

[2020] HKCA 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 212 OF 2017

(ON APPEAL FROM HCCC 124 OF 2017)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with the offence of unlawfully trafficking in a dangerous drug, namely 365 grammes of a liquid containing 252 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 19 September 2016 at Hong Kong International Airport. Following her plea of guilty in the Magistracy[1] and her committal to the Court of First Instance for sentence, the applicant appeared before D’Almada Remedios J (“the judge”) on 20 June 2017 and was sentenced to 8 years 10 months’ imprisonment.

2.  On 13 July 2017, the applicant filed a Notice of Application for Leave to Appeal against her sentence (Form XI). 

3.  The case first came on for hearing on 28 March 2019 with the court constituted by myself and M Poon J.  As a result of information provided by the applicant’s then counsel, Mr Philip Ross, the court adjourned the hearing and ordered that in future the application be fixed before myself for directions. Thereafter a number of directions hearings took place.

4.  At the hearing on 8 September 2020 I granted the applicant leave to appeal.  These are my reasons for so doing.  

The Summary of Facts

5.  The facts which the applicant admitted for the purpose of her sentencing revealed that the applicant is a Venezuelan national who was living in Brazil and who arrived in Hong Kong by plane on 19 September 2016. Upon her arrival at the Hong Kong International Airport, she was intercepted by a Customs Officer for inspection at the Arrival Hall. She was suspected to have internal concealment of dangerous drugs and so was sent to North Lantau Hospital for an X-ray. The X-Ray revealed foreign objects inside her body and these were later confirmed to be the drugs particularized in the charge. Under caution, the applicant stated that a Columbian, whom she had met only twice, offered her a job to bring “liquid” to Hong Kong for a reward of US$5,000. She accepted the offer because she had financial problems. She swallowed the packets and was instructed that on her arrival in Hong Kong she should proceed to a nominated hotel.

6.  At that time, the cocaine had a retail value of around HK$400,000.

The mitigation

7.  The applicant was represented at her sentencing hearing by Mr Hanif Mughal, instructed by Mr David Ravenscroft of David Ravenscroft & Co. Mr Mughal informed the judge that the applicant was 39 years of age at the time of the sentencing and was of clear record. She came from a poor family. She had three children, aged 15, 9 and 3 years, from two former relationships. The applicant was the sole financial provider for the children who are living with relatives. Her business as a hawker brought her an income, in a good month, of up to US$200. However, this amount was not enough to support herself and the children and so she resorted to borrowing money. At the time of the offence she had accumulated a debt of US$3,000 and was being hounded for repayment.

8.  Just as her lenders started putting pressure on her, the applicant was introduced to a Columbian male who in turn offered her US$5,000 to bring the cocaine to Hong Kong. She asked the court to accept that she was acting only as a courier and was not a “mastermind or the organizer or a very major player in this”[2].

9.  After completing his description of the applicant’s personal circumstances and the background to her involvement in this offence.  Mr Mughal said:

“So, my Lady, in terms of mitigation, the only real mitigation is the plea of guilty before you.”[3]

10.  He then referred the judge to the relevant sentencing tariff for the quantity of cocaine in which the applicant trafficked and submitted that she was entitled to a full discount from the starting point adopted by the judge for her timely plea of guilty. 

11.  Mr Mughal concluded his mitigation by saying:

“And also, my Lady, one other matter. She says that of course in prison she has been reflecting upon her misdeeds and how easy it is for persons in financial problems to succumb to this. So what she has done, my Lady, is this: she says she has been in touch with her family and her friends, telling of her plight in Hong Kong, and of course that, she says, is indicative of her further remorse to warn others.”[4]

The judge’s Reasons for Sentence

12.  After setting out the applicant’s personal background and the circumstances surrounding her involvement in this offence, the judge stated:

“Mr Mughal has correctly reflected the fact that your only real and strongest mitigating factor is your early plea of guilty at the committal stage.”[5]

13.  By reference to the sentencing guidelines set out in R v Lau Tak Ming & Others[6], the judge adopted a starting point of 12 years and 9 months’ imprisonment, which she enhanced by 6 months for the international element of bringing drugs into Hong Kong from abroad.

14.  From this enhanced starting point of 13 years 3 months the judge gave the applicant a full one-third discount for her timely guilty plea and passed on her a sentence of 8 years and 10 months’ imprisonment. 

The applicant’s ground of appeal

15.  The applicant relied on an Amended Perfected Ground of Appeal against Sentence, settled by Mr Andrew Bruce SC, which contained only one ground of appeal. The first limb of this ground asserts that the applicant’s sentence was manifestly excessive and should be reduced because of evidence of positive good character, namely that she had arranged for her letters dissuading others from trafficking drugs into Hong Kong from South America to be placed on an anti-drug trafficking website.

16.  The website to which the applicant is referring is the website of Father John Wotherspoon who is known for his campaign warning people from South America about the dangers, and consequences if caught, of trafficking drugs into Hong Kong. An important element of his website is the publishing of letters of convicted couriers.

17.  The second limb of this ground of appeal assumes a failure by Mr Mughal to advance in mitigation the assistance that the applicant provided to Father Wotherspoon’s campaign. This limb argues that despite the failure by her counsel to draw to the judge’s attention the active participation of the applicant in Father Wotherspoon’s campaign, as supported by a letter from Father Wotherspoon himself, it is just and expedient for the Court of Appeal to consider this material and determine whether the sentence of the applicant should be reduced as a consequence.

The application by the applicant’s original legal advisers to adduce fresh evidence on appeal

18.  On 11 April 2018, the applicant filed a Notice of Motion, seeking leave under section 83V of the Criminal Procedure Ordinance, Cap 221, to file an affirmation which she had affirmed on 28 March 2018. By paragraph 3 of her affirmation the applicant attached about fifteen letters written by her, together with attachments. By paragraph 4 of her affirmation she affirmed:

“I understand that the said letters have only been produced to my lawyers by the said Mr John Wotherspoon recently and thus they were not produced to court at the sentencing stage.”

19.  The applicant’s letters were all addressed to Father Wotherspoon and amongst other matters she expressed her, and her family’s, willingness to provide information to the Hong Kong authorities, and to participate in the campaign led by Father Wotherspoon.

20.  Attached also to the applicant’s affirmation, and produced by paragraph 5 of it, was a letter written by Father Wotherspoon to the court dated 15 June 2017[7]. In his letter, Father Wotherspoon acknowledged the applicant’s support of his campaign, by writing five letters which he had placed on his website. Father Wotherspoon also acknowledged the applicant’s efforts in enlisting the assistance of her family and friends in Venezuela in spreading the message about the dangers of trafficking drugs to Hong Kong. He said the inmates at Tai Lam “tell me that our anti-drug campaign has a lot to do with the fact that this year (ie 2017) there has been only one new Tai Lam woman arrested at HK airport from the whole of South America”. He concluded his letter by expressing the hope that the applicant’s support of his anti-drug campaign could be “acknowledged as a constructive contribution to Hong Kong society and be treated on a par with positive good character for the purpose of sentence”.   

21.  A second Notice of Motion was filed on 9 October 2018 seeking leave to file an affidavit of Mr Ravenscroft sworn on 8 October 2018. The purpose of this affidavit, according to Mr Ravenscroft, was to supplement the affirmation of the applicant affirmed on 28 March 2018, specifically in respect of paragraphs 3 and 4 of her affirmation which concerned only the applicant’s letters to Father Wotherspoon. Mr Ravenscroft sworn:

“… the letters from the Applicant to Mr John Wotherspoon were only produced to my office on the 21^st day of February 2018 and thus they were not produced to Court at the sentencing stage.”

22.  Mr Ravenscroft made no reference in his affirmation to paragraph 5 of the applicant’s affirmation which concerned the letter addressed to the court by Father Wotherspoon.

The hearing on 28 March 2019

23.  At this hearing the applicantwas represented by Mr Ross but Mr Ravenscroft was not present as he was out of Hong Kong. At this hearing Mr Ross informed the court that Father Wotherspoon’s letter of 15 June 2017 was emailed that same day to the applicant’s solicitors. Mr Ross said he was instructed that Mr Ravenscroft received it and sometime between 15 and 20 June discussed it with counsel. Mr Ross understood that counsel saw the letter and decided not to produce it as he formed the view, based on his experience with the judge, that the letter would not be favourably received.

24.  After taking further instructions from the applicant, Mr Ross, and subsequently Mr Ravenscroft, withdrew from representing the applicant.

The application by the applicant’s new legal advisers to adduce fresh evidence on appeal

25.  On 24 June 2019, the applicant’s new legal advisers filed on her behalf a Notice of Motion seeking leave to file a second affirmation of the applicant affirmed on 21 June 2019. In this affirmation she explained how she came to be involved in Father Wotherspoon’s campaign. Importantly she set out the advice, or lack of it, that she had received in respect of her assistance to Father Wotherspoon. She affirmed as follows:

“7. However, at no stage either before or during the plea and sentence hearing on 20^th June 2017 did my solicitor or counsel advise me that the assistance I gave to Father as enumerated in my first affirmation or above might entitle me to a discount of sentence were that assistance brought to the attention of the sentencing judge. As to whether the fact of the assistance should or should not be related to the court was never discussed with me.

8. After the sentence but before the appeal on 28^th March 2019, my Solicitor or Counsel did mention to me about the existence of the Wotherspoon’s Letter which my Solicitor or Counsel claimed to be not accepted by the judge. But at all material time I was not explained about the impact of the Wotherspoon’s Letter.”

26.  Subsequently, the applicant filed a third affirmation affirmed on 29 October 2019. In this affirmation the applicant set out her meetings with her legal advisers and her recollection of what was discussed at them. The following paragraphs of her affirmation relate to Father Wotherspoon’s letter:

“6. About a week before the plea and sentence hearing, I met Mr Ravenscroft and Mr Mughal at Tai Lam. That was the only time I met Mr Mughal. At this meeting I was asked about my family background for further details and was advised as to the possible sentence including the one third discount for a guilty plea.

7. During the meeting, I was neither aware of any letter from Father Wotherspoon, nor did I mention my meeting with the Father because I never knew and was not advised that my assistance to the Father’s campaign might be a mitigating factor. Neither Mr Ravenscroft or Mr Mughal asked my (sic) any questions about Father Wotherspoon nor did they give me advice on that matter.

…

10. On the day of the plea and sentence hearing I did not meet Mr Ravenscroft or Mr Mughal.

11. At no stage prior to sentencing did either Mr Ravenscroft or Mr Mughal tell me that a letter had been received from Father Wotherspoon. As at the date of sentencing I was not aware that Father Wotherspoon had sent a mitigation letter to Mr Ravenscroft.”

27.  As the applicant had waived legal professional privilege[8] I directed, on 12 June 2020, that Mr Ravenscroft and Mr Mughal file affirmations setting out in detail all pre-sentencing instructions given to them and the legal advice given to the applicant concerning the conduct of the applicant’s mitigation on 20 June 2017.

28.  In compliance with this direction Mr Ravenscroft filed a second affidavit that was sworn on 31 July 2020 and Mr Mughal filed an affidavit sworn on 3 August 2020. In relation to Father Wotherspoon’s letter Mr Ravenscroft sworn as follows:

“8.   On 15^th June 2017, I received an email from Father John Wotherspoon enclosing his support letter for the Applicant together with attachments. Copies of the said email, letter and attachments are now produced and shown to me marked “DR-4” and exhibited hereto. These were the only papers I received from Father Wotherspoon before the hearing.

9.     The said support letter and attachments from Father Wotherspoon were forwarded to Mr Mughal by email on 16^th June 2017. A copy of my and my firm’s email correspondence with Mr Mughal is now produced and shown to me marked “DR-5” and exhibited hereto.

10.   On 20^th June 2017, the date of the plea and the sentence before Hon D’ Almada Remedios J Mr Mughal and I spoke to the Applicant in court before the hearing whilst she was in the dock. We told her of the letter from Father Wotherspoon and said the matters referred to therein would be brought to the attention of the court but that the letter would not be produced. I estimate that we spoke to her for 5 minutes.”

29.  In his email to Mr Mughal which Mr Ravenscroft exhibited to his affirmation, Mr Ravenscroft wrote:

“Subject: Hearing on Monday

From: David <dr@drlawyers.com.hk>

Date: 16/6/2017 10:17

To: admin@gardenchambers.com.hk

Dear Mr Mughal,

Father Wotherspoon’s correspondence does present issues which can only be resolved by instruction from the client.

His letter of 15th June states that she has been supporting his anti-drug campaign. She can’t have made any facebook postings but may, at his prompting, have written to her family and friends, whether in Venezuela or Brazil. Whatever the Judge thinks of Father Wotherspoon I don’t see that this can do any harm. It may be an indication of remorse but does not amount to positive good character or assistance to the police. I don’t see that it will affect the sentence either way even if it does irritate the judge. I think we should explain the situation to the defendant, including the judge’s likely attitude and that we do not think it will affect sentence.

We can also take her instructions on her salary and the disposal of exhibits.

Regards

David”

30.  In his affirmation affirmed on 3 August 2020 Mr Mughal responded to the applicant’s assertions in respect of the legal visit at Tai Lam Center for Women on 12 June 2017 and the dockside conversation with her on 20 June 2017. He affirmed as follows:

“14. I do not recall the Applicant mentioning anything about her participation in Father Wotherspoon’s anti-drugs campaign at Tai Lam on 12^th June 2017. If the Applicant had mentioned her participation in Father Wotherspoon’s campaign, I would likely have advised her that the sentencing judge assigned to her case would not have considered this a mitigating factor, given previous sentencing decisions of the learned Judge. I explain this in more detail in paragraphs 20 and 21 below.

…

Father John Wotherspoon’s letter dated 15^th June 2017

19. It appears (from the documents sent to me by Mr Ravenscroft on 15^th July 2020) that this letter was sent to me, along with other documents on pages 10 to 14 of exhibit HMM-1, on 15^th June 2017 by email to my Chambers (HMM-1 p.17).

20. Participation in Father Wotherspoon’s anti-drugs campaign was not at that time regarded as a mitigating factor by Hon D’Almada Remedios J in passing sentence for trafficking in dangerous drugs cases and carried no weight. As such, the letter would have no bearing on sentence and I would have considered, in my discretion, not submitting or putting it before the learned Judge. It was her prevailing and known practice at that time and in 2016 that participation in Father Wotherspoon’s anti-drug campaign was not relevant so as to entitle a defendant to any discount or reduction in sentencing. In case I am wrong in this perception, I have considered whether my understanding of the learned Judge’s practice at that time is accurate by researching drug trafficking sentences before the same learned Judge.

21. I refer to HCCC 188 of 2016 (sentenced on 15^th July 2016), HCCC 253 of 2016 (sentenced on 21^st July 2016), HCCC 290/2015 (sentenced on 3^rd August 2016 and leave to appeal refused (CACC 358/2018)), HCCC 417 of 2016 (sentenced on 7^th December 2016) & HCCC 108 of 2017 (sentenced on 9^th June 2017). There is now produced and shown to me marked ‘HMM-3’ copies of the transcripts of these sentence hearings. These cases by the learned Judge support the perception and view that participation in Father Wotherspoon’s anti-drugs campaign was not a relevant matter to which a reduction of sentence would be given, at least by the Judge before whom we were listed to appear.

22. Further, the Court of Appeal in the cases of HKSAR v Masham Deborah James CACC 381/2015 and HKSAR v Akinyi Grace Syliva CACC 324/2015 did not, at that time, interfere with or give any provision for the sentencing approach for assistance to Father Wotherspoon’s campaign in the Court below.

23. I note that I made reference to contact by the Applicant with her family and friends, telling them of her plight in Hong Kong as an indication of her further remorse to warn others (at page 6Q-S of the Transcript of Mitigation). This may be a reference to Father Wotherspoon’s campaign. I believe that I would not have said this without instructions. Although the anti-drugs campaign letter of Father Wotherspoon was not mentioned at the plea and sentence hearing (or produced to the Court) its import was made known and brought to the attention of the sentencing Judge. Further, I note from paragraph 5 of the Amended Perfected Grounds of Appeal against Sentence dated 8^th April 2020 that ‘Unknown to the Applicant or her legal advisors was the fact that Father John had sent a letter to the sentencing court concerning the participation in his program of the Applicant independently of the Applicant or her legal advisors.”

The respondent’s submissions

31.  In reply, Mr Franco Kuan, for the respondent, raised no objection to the applicant’s Notices of Motion to adduce additional evidence.

32.  Regarding the ground of appeal advanced, Mr Kuan argued the assistance to Father Wotherspoon constituted post-sentence events and it was well-established that post-sentence events should be left to the executive to deal with, a view that was confirmed by the Court of Appeal in HKSAR v Kilma Abubakar Abbas[9]. That being so, and there being no other consideration requiring the intervention of the Court of Appeal, he submitted that the present application should be dealt with by the Executive rather than this court.

33.  Mr Kuan also submitted that, in any event, the letters now produced by the applicant showed that she did not contribute meaningfully to the campaign. There was no basis to further reduce the sentence imposed by the judge.

34.  However, Mr Kuan accepted that the fresh evidence revealed a conflict between what the applicant said had transpired between her and her legal advisers and what Mr Ravenscroft and Mr Mughal claimed had taken place.  Mr Kuan submitted that these conflicting versions had to be resolved by the Full Court. He recognised that if this conflict was resolved by the Full Court favourably to the applicant then it may regard the applicant’s appeal more sympathetically.  That is why, he said, the conflicting versions had to be resolved. 

Discussion

35.  I agreed with Mr Kuan that there was an important conflict which needed to be resolved.  As the resolution of this conflict may require an assessment to be made of the credibility of those involved in the conflict, I did not consider it appropriate for me to receive evidence from these persons at this stage.

36.  I was persuaded that it was reasonably arguable that, on the papers, the applicant’s version was credible and that if she was believed it was reasonably arguable that she did not receive a fair trial at her sentencing hearing.  However, I should add a cautionary note that even if the Court of Appeal accepted the applicant’s claims, the outcome of the appeal may still not result in a reduction of her sentence. 

Disposition

37.  For these reasons I granted the applicant leave to appeal.

[1] On 10 April 2017 at Eastern Magistrates’ Courts.

[2] Appeal Bundle, page 6D-E.

[3] Appeal Bundle, page 6I-J.

[4] Appeal Bundle, page 6Q-T.

[5] Appeal Bundle, page 2N-O.

[6] [1990] 2 HKLR 370

[7] This letter does not appear to have been received by the judge when she came to sentence the applicant on 20 June 2017.  At the time of the hearing of the application there was no evidence before the court to explain why this was so. 

[8] The applicant’s waiver of legal professional privilege was exhibited to the affidavit of Lau Ka Hei, of the applicant’s solicitors, sworn on 15 January 2020.  

[9] [2018] 5 HKLRD 88 at [66] (per Lunn VP) and [91] (per Macrae VP). Mr Kuan also relied on the judgment in HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249in support of the same view at [45]‑[46].