HKSAR v. COZ TUCTO DELIA

CACC 40/2019

[2019] HKCA 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 40 OF 2019

(ON APPEAL FROM HCCC 280 OF 2018)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The applicant faced a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 18 November 2017, at Hong Kong International Airport, the applicant unlawfully trafficked in 1.38 kilogrammes of a solid containing 903 grammes of cocaine.

2.  Following her plea of guilty in the Magistracy and Committal for Sentence to the Court of First Instance in respect of this single charge, the applicant appeared before Deputy High Court Judge A Kwok (“the judge”) for sentence. On 1 February 2019, she was sentenced to 15 years and 10 months’ imprisonment. 

3.  Subsequently she filed a Notice of Application for Leave to Appeal her sentence (Form XI) on the sole ground that it was “too long”. Additionally, the court received a letter from Father Wotherspoon setting out details of the applicant’s assistance to his anti-drug campaign.

4.  At the hearing of the application I granted her leave and an Appeal Aid Certificate and said I would hand down my reasons for doing so at a later time. This I now do. 

The background to the offence

5.  The Summary of Facts which the applicant admitted and which was used for the purpose of her sentencing revealed that on 18 November 2017, the applicant, a Peruvian female, arrived at the Hong Kong International Airport on a flight after travelling from Lima. She was intercepted for customs clearance and an ion scan test on her baggage showed a positive result for cocaine. No contraband was found in her baggage. However, whilst she was with Customs Officers for the purpose of a body search, she excreted 60 plastic pellets. These plastic pellets tested positive for cocaine so she was sent to North Lantau Hospital where a preliminary medical examination confirmed the presence of foreign objects inside her body. She was then taken to Queen Elizabeth Hospital for further discharge of these objects.

6.  In total, she discharged 183 pellets which contained a total of 903 grammes of cocaine. The estimated value of the cocaine at that time was HK$1,672,580. 

7.  In a record of interview the applicant stated that she had swallowed about 185 pellets of cocaine in Lima on 16 November 2017 and had been promised she would receive US$9,000 upon successful delivery of the cocaine in Hong Kong. She had no information on the person who gave her the cocaine, nor on the person who was to receive her in Hong Kong.  

8.  The Summary of Facts concluded with the following paragraph:

“The defendant admits she knew she was unlawfully trafficking in the dangerous drugs seized from her at the time of the offence.”[1]

The mitigation

9.  The applicant was of a clear record. Her counsel submitted that for the amount of cocaine involved, the starting point would fall between 20 and 23 years and this would then have to be enhanced by 1 to 2 years for the international element.

10.  It was also submitted that whilst the applicant had participated in the campaign by Father Wotherspoon, it was “of fairly limited assistance”[2]. It was said on her behalf that the applicant and her family were trying to spread the word back in her hometown by warning other people not to allow themselves to be used as a drug mule. Her counsel accepted that such a discount, if allowed, would not exceed 3 months.

11.  It was further submitted that she committed the present offence as she was in desperate need of money. A mitigation letter written by her was also submitted to the judge to show her remorse towards the offence.

The judge’s Reasons for Sentence

12.  Having considered the facts of the case, background of the applicant and mitigation advanced by her counsel, the judge found that the only effective mitigating factor for the applicant was her guilty plea at the earliest opportunity. He did not accept that the difficulty she was facing as a foreigner in a local prison was a mitigating factor, nor would family circumstances play any part in serious offences such as the drug trafficking.

13.  The judge referred to the efforts of the applicant and her family in assisting Father Wotherspoon in his campaign, and said of it:

“… This is something which the court greatly appreciates. However, in my judgment, it is not a factor which can be used as a reduction or as mitigating factors from the starting point.”[3]

The judge did not provide any further explanation for why he reached this judgment.

14.  The sentence the judge imposed was based upon a starting point of 21½ years’ imprisonment which the judge enhanced by 2 years for the international element. This was then reduced by one third to allow for the plea of guilty and by this route the judge arrived at a final sentence of 15 years and 10 months’ imprisonment.

The grounds of appeal

15.  The applicant was unrepresented at the leave hearing. In her Form XI she complained that the sentence she received was “too long”.

16.  At the hearing of her application she asked the court to have regard to the fact that she had an 8 year old girl for whom she cared and who needed her. She also asked for the return of USD$1,855 which had been in her possession at the time of her arrest.

Discussion

17.  The starting point adopted by the judge, namely, 21½ years, is in line with the sentencing guidelines and I can see no basis for interfering with it.

18.  The 2-year enhancement for the international element is the maximum that can be imposed and I presume that the judge settled on this figure because the quantity of narcotic was close to the upper limit of the 500-1,000 grammes range[4] laid down by the Court of Appeal in HKSAR v Chung Ping Kun[5]. The assessment by a judge of the length of the enhancement is an exercise of discretion by him and it is important to any prisoner to know not just the amount of the enhancement but why a particular figure has been chosen.

19.  It is now settled law that the decision of whether to award a discount to recognise assistance that is provided to Father Wotherspoon’s campaign lies within the discretion of the sentencing judge but, of course, that discretion must be exercised judicially and any discount awarded must not exceed 3 months.

20.  An appellate court can only assess whether a discretion has miscarried by examining the reasons underlying its exercise. Here, those reasons are somewhat opaque for both the assessment of the enhancement for the international element and the refusal to award a discount for participation in Father Wotherspoon’s campaign. For the former it appears to be for the reason I have mentioned above and for the latter the only clue to the judge’s reasoning is a comment by the judge in the course of the mitigation which may suggest that he thought that anything he awarded would be inconsequential in view of the length of the sentence he would be imposing[6].

21.  This aside, it is clear that the judge made an arithmetic error in his calculation of the final sentence. A one third discount of his starting point of 23½ years is 15 years and 8 months, instead of 15 years and 10 months.

Disposition

22.  In view of the matters I have mentioned above I granted the applicant leave to appeal her sentence. I also granted an Appeal Aid Certificate to the applicant so that she could have the assistance of counsel in arguing her appeal.