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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J U D G M E N T

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1.  The applicant seeks leave to appeal against her conviction and the total sentence of 23 months’ imprisonment imposed upon her by District Court Judge Sham following her conviction, on her pleas of guilty, on 18 December 2014 to a charge of unlawful trafficking in a dangerous drug on 10 July 2014, namely 4.18 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Charge 1), and a charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115 (Charge 2). The applicant was sentenced to 22 months’ imprisonment in respect of Charge 1 and one month’s imprisonment in respect of Charge 2, to be served consecutively, so that the total sentence was 23 months’ imprisonment.

The facts

2.  In tendering her pleas of guilty, the applicant accepted a ‘Summary of Facts’ as the basis of the court accepting those pleas.  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 subsequent to 8 October 2013.

3.  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, which were found to contain 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, “Her friends contributed money to purchase the cocaine.”  The applicant accepted it in terms in the Summary of Facts that “she possessed the dangerous drugs seized for the purpose of trafficking.”

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

5.  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.

Reasons for sentence

6.  In his reasons for sentence the judge noted that it was submitted on behalf of the applicant that :

“ … a man gave her $10,000 to buy the drugs, and she went to Hollywood Road to buy the drugs, and she waited in the sitting-out area for instructions to go to a party.”

7.  Of the submission made, on behalf of the applicant that the applicant was concerned in “social trafficking” of the dangerous drugs, the judge 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.”

8.  Of the issue of whether or not some of the dangerous drugs were for her own consumption, the judge said :

“ …I find the story put forward, that this is a case of social trafficking, rather dubious; but on the evidence before the court, I cannot rule out the possibility that some of the drugs was for the defendant’s own consumption.”

Starting point for sentence

9.  Having noted that the guidelines for sentence for unlawfully trafficking in cocaine provide that for unlawful trafficking in amounts of up to 10 grammes of a range of sentence of 2 to 5 years’ imprisonment is called for, the judge stipulated a starting point for sentence of 3 years and 3 months’ imprisonment.  The judge took a starting point of one and a half months’ imprisonment for Charge 2.

Discount

10.  The judge said that he afforded the applicant a discount of six months’ imprisonment to reflect the fact that part of the dangerous drugs were for her own consumption.  From the resulting term of 33 months’ imprisonment, the judge afforded the applicant a discount of one-third to reflect her plea of guilty.  In the result, the judge sentenced the applicant to 22 months’ imprisonment on Charge  1.  Affording the applicant a similar discount of sentence, for her plea of guilty, the judge sentenced the applicant to one month’s imprisonment on Charge 2.

11.  Noting that the two offences were of a difference in nature, the judge ordered that the two sentences run consecutively.  Accordingly, the total sentence imposed on the applicant was 23 months’ imprisonment.

Appeal against conviction

Grounds of appeal against conviction

12.  In her home-made submissions attached to the Notice of application for leave to appeal against conviction and sentence dated 23 December 2014, the applicant said she “would like to request for appeal against sentence and conviction, as [she] found the sentence is too long.”  The applicant wrote a letter to the court dated 6 March 2015 and filed an affirmation on 30 March 2015 with particulars of her complaints against her counsel in the lower court, Ms Amanda Lee.  In her oral submissions in court in an exchange with the court, it appeared that the crux of such complaint that she had was her difficulty in understanding that in law in Hong Kong unlawful trafficking was made out by the circumstances of the commission of the offence that she admitted, namely that she had purchased the cocaine with money given to her by a friend with whom, together with other friends, she intended to consume the cocaine.  Nevertheless, the applicant accepted that was the advice that she was given by those representing her and that was the basis for her plea of guilty.  Secondly, the applicant appeared to be aggrieved that evidence was not called by counsel to substantiate a claim that she made to have operated successfully in business.  As was explained to the applicant, that consideration played no part in the judge’s sentencing.  Indeed, in the circumstances of this case it was irrelevant.

13.  By her letter to the court dated 17 April 2015, Ms Amanda Lee, strenuously denied the applicant’s allegations against her.  In response to the applicant’s allegations Ms Hui Sze Mnun of Messrs W T Law Offices, who acted for the applicant on the instructions of the Director of Legal Aid, at the direction of the court filed an affirmation dated 27 May 2015, in which Ms Hui refuted the applicant’s allegations.  Helpfully, Ms  Hui set out in chronological sequence the multiple conferences, some by video link and in some person, that those representing the applicant had with the applicant.  Ms Hui explained that initially, the applicant’s instructions were to contest the trafficking charge on the basis that the applicant had the dangerous drug for her own consumption only.  However, on 12 December 2014, with the assistance of a Spanish interpreter, Ms Lee explained the meaning of “trafficking” to the applicant and drew to the attention of the applicant to the relevant parts of the transcripts of the video-recorded interview in which the applicant said, in effect, the cocaine was purchased with money given to her by a friend and that the dangerous drugs were to be shared with others at a party.  Ms Lee explained to the applicant that the dealing that she described having had with the cocaine was “social trafficking”, which nevertheless constituted the offence of unlawful trafficking in dangerous drugs.  The applicant was advised to consider a plea of guilty carefully, since that would entitle her to a discount of sentence of one-third.   Further, she was advised that in that event an attempt could be made to have the prosecution accept that a part of the dangerous drugs was for her own use, so that a further discount in sentence could be obtained.  At another conference, held on 13 December 2014, the applicant read the transcript of the video-recorded interview and confirmed it to be accurate.  Then, she changed her instructions, indicating that she proposed to plead guilty, which fact was recorded in writing and signed by the applicant.  On 17 December 2014, with the assistance of an interpreter, those instructions were again confirmed in writing.

14.  The respondent, represented by Mr  Martin Hui SC, opposed both applications.

A consideration of the submissions of the application for leave to appeal against conviction

15.  In order to proceed with her application for leave to appeal against conviction, it is necessary for the applicant to demonstrate that there is a basis for her submission that her plea of guilty was equivocal.  It is quite clear that there is no such basis.  It was nothing of the sort.  First, she accepted the Summary of Facts in which she accepted in terms that “she possessed the dangerous drugs for the purpose of trafficking”.  The audio recording of that part of the proceedings were played in this Court.  Secondly, those were her instructions to those representing her, which instructions she gave on 13 December, confirmed on 17 December 2014.  Thirdly, in a handwritten letter of mitigation given to the court on the day on which she pleaded guilty and was sentenced she said :

“ …they conducted a search on me and I was arrested as police has found illicit drugs in my handbag, at the moment of my detention as well as a declaration which video recorded, I admitted that I was going to consume drugs with my friends, as many people do the same very but I didn’t know that with my declaration has been guilty of committing an offence in your country for “social trafficking” (a) term that I have no knowledge until recent days.”

16.  It is right, that passage having been translated by the interpreter in Court today, that his translation was to the effect that the applicant wrote :

“ I admitted consuming drugs in the company of my friends.”

17.  Nevertheless, as the applicant very frankly made clear, her case was that she had been provided with the money to buy the cocaine, which she intended to consume and share all in its consumption with her friends.  Clearly, in law that was unlawful trafficking in that cocaine.

Conclusion

18.  It is clear that the applicant’s allegations, that those representing her failed to do so adequately, is wholly without substance and ought never to have been made.  It is quite obvious from the material provided by Ms Hui that they had attended to her case with considerable care and attention, giving her the correct advice from which she has benefited ultimately in the sentence that was imposed on her.  There is no merit in the application for leave to appeal against conviction, which is refused.

A consideration of the submissions in respect of the application for leave to appeal against sentence

19.  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[1] and R v Lau Tak Ming.[2]  The judge was entitled to give the applicant a discount from that sentence to reflect his acceptance that part of the dangerous drugs were for consumption by the applicant herself.  As Mr Martin Hui has pointed out in his written submissions the range of discount to be afforded to a defendant in those 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.[3] The discount of about 15% afforded to the applicant on that basis was within the appropriate range available to the judge.  Further, the judge afforded the applicant a discount of one-third from the resulting reduced total starting point for sentence.  Again that was appropriate.

Conclusion

20.  There is no merit in the application for leave to appeal against sentence, which is refused.

21.  The applicant is advised that, following the refusal of her application by a single judge, she may renew her application for leave to appeal against sentence, if she wishes to do so, by filing Form XIII of the Criminal Appeal Rules, Cap.  221 within 14 days. However, she is informed that if the Court of Appeal comes to the conclusion that there was no justification for the renewal, it has power to make a direction for the loss of time, namely in respect of some or all of the time that the applicant has served in custody for these offences since she filed her notice of her application for leave to appeal pending the hearing of her application.

[1] AG v Pedro Nel Rojas [1994] 2 HKCLR 69.

[2] R v Lau Tak Ming [1990] 2 HKLR 370.

[3] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.