HKSAR v. COZ TUCTO DELIA

CACC 40/2019

[2020] HKCA 1013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 40 OF 2019

(ON APPEAL FROM HCCC NO 280 OF 2018)

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J U D G M E N T

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

Introduction

1.  Following her guilty plea in the magistrate’s court to a single charge of trafficking in a dangerous drug, namely 1.38 kilogrammes of a solid containing 903 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the appellant was committed to the Court of First Instance for sentence.  On 1 February 2019, Deputy High Court Judge A Kwok (the judge) sentenced the appellant to 15 years and 10 months’ imprisonment.  

2.  The appellant applied for leave to appeal against her sentence, which was granted by a Single Judge on 15 November 2019.[1]  

The brief facts

3.  On 18 November 2017, the appellant, a Peruvian female, arrived at the Hong Kong International Airport on a flight that originated from Lima, Peru.  She was intercepted for customs clearance and an ion scan test on her baggage showed a positive result for cocaine, even though nothing illegal could be found. 

4.  In the course of a body search by Customs officers she excreted 60 plastic pellets, which tested positive for cocaine.  She was immediately taken to hospital where a preliminary medical examination confirmed the presence of foreign objects inside her body.  In total, the appellant had discharged 183 pellets, which contained the cocaine as particularised in the charge.  The estimated value of the cocaine at the time of the offence was $1,672,580.  

5.  In a subsequent record of interview, the appellant stated that on 16 November 2017, when she was in Lima, she was given about 185 pellets of cocaine to swallow, and had been promised she would receive a reward of US$9,000, upon successful delivery of the cocaine in Hong Kong.  She could not provide any information of the person who gave her the cocaine, nor of the person who was to receive her upon her arrival in Hong Kong.   

The appellant’s mitigation

6.  Counsel then acting for the appellant submitted that she committed the present offence because shortly before she left Peru, she had adopted an infant orphan girl and she owed a sum of money to the bank in Peru. She was then offered a chance to earn quick money and she succumbed to the temptation in order to repay the debt.[2] The appellant also wrote a letter expressing her remorse in committing the present offence.[3] 

7.  Counsel submitted that in accordance with the sentencing guidelines for the amount of cocaine involved, the starting point should fall between 20 and 23 years’ imprisonment with an enhancement for the international element of between 1 and 2 years.  Counsel also submitted that the appellant had participated in Father John Wotherspoon’s anti-drug campaign, which he described was “of fairly limited assistance”.[4] A letter written by Father Wotherspoon dated 1 February 2019 was submitted to the judge for his consideration.[5]  It was accepted that a discount for this factor, if allowed, would not exceed 3 months.[6] 

The judge’s reasons for sentence

8.  Having considered the facts of the case and the appellant’s mitigation, the judge took the view that the only effective mitigating factor was her guilty plea which was tendered 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 her family circumstances or financial hardship play any part in offences as serious as international drug trafficking. 

9.  Of the participation by the appellant and her family in Father Wotherspoon’s anti-drug campaign, the judge said:

“I have also heard … that you have assisted Father John Wotherspoon in spreading the message of the danger of taking drugs overseas and spreading this message through the internet through your daughters or family or friends in Peru. 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.”[7]

10.  The sentence the judge imposed was based upon a starting point of 21 years and 6 month’s imprisonment, in accordance with the sentencing guidelines laid down in HKSAR v Abdallah [2009] 2 HKLRD 437.  He enhanced the starting point by 2 years for the international element in accordance with HKSAR v Chung Ping Kun [2014] 6 HKC 106.  This was then reduced by one third to allow for the appellant’s timely 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

11.  Mr Frederic Whitehouse, for the appellant, argues that the sentence was wrong in two respects.  First, the sentence was said to be too severe in all the circumstances, and secondly, after a one third discount the sentence should have been 15 years and 8 months’ imprisonment instead of 15 years and 10 months which the judge miscalculated.  He adds that the judge did not properly apply the guideline for the international element to the quantity of drugs involved.

12.  Mr Whitehouse also complains that the judge failed to discount the appellant’s sentence for her personal circumstances and expression of remorse, and made no allowance for her participation in Father Wotherspoon’s campaign, even though he acknowledged the benefit to the public interest of having done so. 

13.  Mr Andrew Li, for the respondent, concedes the judge miscalculated the one third discount but rejects that the judge erred in not giving the appellant a discount to her sentence for her personal circumstances and participation in Father Wotherspoon’s campaign, nor in making an  appropriate adjustment for the international element.

Discussion

14.  As is accepted by the parties the judge made a mistake in his calculation of the one third discount to the starting point of 21 years and 6 months’ imprisonment.  It should have been 15 years and 8 months’ imprisonment instead of the 15 years and 10 months’ imprisonment that he calculated.

15.  It therefore falls on this Court to resentence the appellant and this will necessarily engage us in conducting a full evaluation of the circumstances to achieve justice in the present case.

16.  It is accepted that the starting point of 21 years and 6 months’ imprisonment complies with the sentencing guidelines, which we adopt in light of the circumstances of this case.  The enhancement for the international element by the judge did not strictly comply with Chung Ping Kun, which provides as a broad guideline a level of enhancement of 1 year to 2 years for quantities between 500 and 1,000 grammes.  Bearing in mind that the quantity of narcotic involved in this case was 903 grammes, we consider that an enhancement of 1 year and 9 months’ imprisonment would be appropriate.

17.  As has been stated by this Court on numerous occasions, an offender’s personal circumstances seldom provide meaningful mitigation in relation to offences of international drug trafficking, which are crimes of the upmost gravity.  See HKSAR v Perez Peraza Zuleyma Coromoto [2019] HKCA 352, unrep., 22 March 2019, at [14].  Unfortunately for the appellant, her background and circumstances do not justify any further discount to her sentence.

18.  Whilst it is acknowledged that the discretion to award a discount in recognition of the assistance by a defendant to Father Wotherspoon’s campaign lies with the sentencing judge, we are now tasked to sentence the appellant afresh, applying the relevant sentencing principles to the circumstances of the cases as we think appropriate.  We have carefully considered the involvement of the appellant in Father Wotherspoon’s campaign and in the circumstances we would discount the appellant’s sentence by 2 months for this factor.  See HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.

19.  In passing sentence on the appellant we would adopt a starting point of 21 years and 6 months’ imprisonment, which we would enhance by 1 year and 9 months for the international element to 23 years and 3 months.  We would reduce the notional starting point by 2 months for the appellant’s participation in Father Wotherspoon’s campaign to 23 years and 1 month, which after a discount of one third for the appellant’s timely plea of guilty would result in a sentence of 15 years and 4 months’ imprisonment.

Conclusion

20.  It follows from what we have said that the appeal is allowed and we substitute the appellant’s sentence for one of 15 years and 4 months’ imprisonment.

[1] [2019] HKCA 1291, unreported, 15 November 2019, per McWalters JA.

[2] Appeal Bundle, page 12G – K.

[3] Appeal Bundle, pages 17 – 19.

[4] Appeal Bundle, page 10S.

[5] Appeal Bundle, pages 14 – 16.

[6] Appeal Bundle, pages 10S – 11S.

[7] Appeal Bundle, page 8H – K.