HKSAR v. ARAQUE ESCOBAR BRIGIDA MARIA

CACC 364/2017

[2018] HKCA 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 364 OF 2017

(ON APPEAL FROM HCCC NO 248 OF 2017)

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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):

1.  The applicant applies for leave to appeal against the sentence of 14 years’ imprisonment imposed on her by Deputy High Court Judge Lugar-Mawson (the judge) on 25 October 2017. The sentence imposed was in consequence of the applicant’s plea of guilty in the Magistrate’s Court to a single offence of trafficking in a dangerous drug, namely 778 grammes of a solid containing 667 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The applicant’s complaint about sentence

2.  In the appeal papers filed by the applicant, she did not articulate any grounds for her appeal against sentence, other than to say she had a “good ground”.  However, a day before the hearing the Court received an English translation of a letter from the applicant dated 1 September 2018 which was written in Spanish.  We will discuss the contents of this letter in more detail later in our judgment.

3.  An affidavit from Father John Wotherspoon dated 29 August 2018 was also filed with the Court on behalf of the applicant.  He referred to a letter dated 19 October 2017 which he had submitted to the judge at the time of sentence.  In the letter, he described how the applicant and her family members had participated in his anti-drug campaign which seeks to warn people of the deleterious consequences of being involved in the drug trade and of bringing drugs to Hong Kong.  He mentioned that the applicant had written a letter, which was posted on his website, describing how she had been recruited and used by Nigerian drug traffickers into committing the present offence.  He further mentioned that the information supplied by the applicant about the Nigerian drug traffickers enabled him to put a file together which he had made available to various authorities.  He concluded his letter by requesting that the judge treat the applicant as a person with positive good character because of the information that she had provided to the authorities and the support that she had given to his campaign. 

4.  In his affidavit filed with the Court, Father Wotherspoon mentioned that in addition to what he had said in his letter he had met the applicant’s family both in Venezuela and in Hong Kong who took part in a video recorded report warning people of the dangers of bringing drugs to Hong Kong which was watched by over 150,000 viewers.  He noted that the participation of the applicant and her family members in his campaign was not taken into account by the judge.  He also noted that the applicant’s provision of information to the Customs and Excise Department about the drug traffickers who recruited her was not mentioned to the judge.  He claimed that the applicant had told him that defence counsel had pressured her to sign a document agreeing not to mention to the judge the information that she had supplied.  On the other hand, the applicant in her letter stated that defence counsel had told her not to make any reference about the information she had supplied because it could be dangerous for her to do so as they did not know who would be in the public gallery. 

5.  We point out that in Father Wotherspoon’s letter submitted to the judge, he mentioned that the applicant had provided information which he set out in an attached document.  He listed four photographs of four men whom he stated the applicant described as being the drug lord and three associates.  Only general particulars were provided about them, basically their names and in which countries they operated, although it was stated that the drug lord and another were responsible for recruiting drug couriers.  The judge therefore had this information and was aware of the applicant’s participation in Father Wotherspoon’s campaign which included identifying the persons who recruited her to commit the present offence.  We further point out that the names of the persons who recruited the applicant in Venezuela were also mentioned in the summary of facts, although the names mentioned were different to those in the attached document of Father Wotherspoon’s letter.

6.  Father Wotherspoon concludes his affidavit by asking the court to give favourable consideration to the applicant’s case and referred by way of comparison to the sentence passed in HKSAR v Pereira Clemente Marcelo, HCCC 4/2018, 22 August 2018, unreported, by Campbell-Moffat J at first instance.

The admitted facts

7.  In the summary of facts giving rise to the offence the applicant admitted that she met a person called “Marcello” who offered her US$6,000 to transport drugs to Hong Kong.  She accepted the offer and he arranged her trip to Hong Kong.  Another person called “Tiago” gave her the cocaine which was in the form of 83 pellets that were to be swallowed by her.  He also gave her US$200 in cash for the trip.  She was told that if she was not arrested, she should take a taxi to Chungking Mansion where someone would collect the cocaine from her.  The applicant took a flight from Sao Paulo, Brazil via Abu Dhabi, United Arab Emirates, to Hong Kong.  On her arrival in Hong Kong on 5 December 2016, she was intercepted by Customs officers for a medical examination.  At the time, she admitted that she was concealing cocaine in her stomach but otherwise remained silent.  The Customs officers recovered from her US$520 in cash, a mobile telephone and a check-in voucher for the Nobel Hotel at Chungking Mansion from 4 to 14 December 2016.

8.  After the applicant was medically examined, it was confirmed that she had internally concealed in her body 83 pellets of cocaine wrapped with plastic and adhesive.  The estimated street value of the cocaine at the time of the offence was $794,338.

The applicant’s background and mitigation

9.  In mitigation, the background and circumstances of the applicant were presented to the judge.  She was 33 years old at the time of sentence, and a national from Venezuela.  She was married but her husband passed away when she was 22 years old.  They had a son who is now 17 years old but as a result of a congenital illness he is paralysed from the waist down.  The son is being cared for by the applicant’s mother who is not in good health.  After the death of her husband, she met her partner, who is a drug abuser.  They have a 4 years old daughter, and it was submitted that she is concerned about the bad influence he is likely to have on their daughter. 

10.  It was also submitted that the applicant committed the offence because of economic reasons.  The judge was informed of the hardship and difficulties that the applicant had experienced in her home country of Venezuela in order to have a home and to earn an income to maintain her family.  She had to hold down two jobs in an effort to support her family but was barely able to make ends meet.

11.  It was further submitted that the applicant’s expressed remorse for the crime she committed had been acted upon by her participation in Father Wotherspoon’s campaign as explained in his letter to the court.  The judge was referred to this Court’s decision in HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249, where it was held that post sentencing participation in Father Wotherspoon’s campaign is a matter that is better assessed and determined by the Executive.

The sentencing of the applicant

12.  In sentencing the applicant, the judge noted the applicant’s background and circumstances and participation in Father Wotherspoon’s campaign.  He followed the sentencing guidelines laid down in R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437, which provide that trafficking in amounts of cocaine narcotic of 600 to 1,200 grammes should attract a starting point in the range of 20 to 23 years’ imprisonment after trial.  He adopted a starting point of 20 years’ imprisonment for the quantity of 667 grammes of cocaine narcotic involved which he enhanced by 1½ years to 21½ years’ imprisonment for the aggravating factor of the international element of smuggling the drugs into Hong Kong.  We note that based on an arithmetic calculation of the relevant guidelines, the starting point for trafficking in 667 grammes of cocaine narcotic would be 20 years and 4 months’ imprisonment.

13.  The judge referred to the personal circumstances of the applicant, but explained that they did not constitute valid mitigation in light of the seriousness of the offence.  He also referred to the applicant’s participation in Father Wotherspoon’s campaign, which he considered was a matter best dealt with by the Executive as pronounced by this Court in previous decisions. 

14.  In passing sentence on the applicant, the judge confirmed the starting point at 21½ years’ imprisonment, and whilst he acknowledged that she was entitled to a full one third discount for her guilty plea, he reduced it by slightly more than that, without explanation, to 14 years’ imprisonment.  We note that had the judge discounted the starting point by one third, it would have resulted in a sentence of 14 years and 4 months’ imprisonment.

Discussion

15.  We have already mentioned the contents of Father Wotherspoon’s affidavit in which he basically provided confirmation and an update of the applicant’s participation in his campaign and the information that she had provided that was posted on his website and supplied to the relevant authorities.  We do not consider that Father Wotherspoon’s affidavit contains anything of additional significance to that which he had previously stated in his original letter to the court. 

16.  The applicant in her letter to the court, set out her background and circumstances and highlighted her participation in Father Wotherspoon’s campaign and the information that she had provided to the Customs and Excise Department, namely particulars of the persons that recruited her in the present offence.  It was unclear what if anything had resulted from the information that the applicant had supplied to the authorities. 

17.  At the hearing of the application, it was brought to our attention by Mr Lenny Cheng, for the respondent, that the applicant had made a non-prejudicial statement dated 9 October 2017 in which she provided information about the persons involved in her case, consisting of names, telephone numbers and addresses.  Some of this information was additional to, or at variance with, that which had been previously provided by her.  In the statement, she mentioned that she had some additional telephone numbers that she would provide later.  This statement had been made six days before the sentencing hearing on 25 October 2017, which provided no time for the authorities to check and assess the information she provided, related as it was to persons and matters in South America.

18.  We were informed by Mr Cheng that the information was passed on to an overseas law enforcement agency but as yet no formal response has been received.   

19.  It is in the public interest to encourage offenders to supply information to the authorities and to give evidence against other offenders.  Whether the information supplied will be of useful assistance to the authorities, will very much depend on a variety of factors, including the nature and significance of the information, the truthfulness, reliability and completeness of the information, the timeliness of the provision of the information, and the ability of the authorities to check and assess the information and act upon it.  Revealing names, telephone numbers and addresses may not be enough. 

20.  In any event, there is a process by which the information is assessed and determined for its significance and usefulness.  This was explained by the Court of Final Appeal in Z v HKSAR (2007) 10 HKCFAR 183 and more recently by this Court in HKSAR v Kilima Abubakar Abbas, CACC 143/2016, 18 September 2018, unreported.  In the latter decision, Macrae VP, with whom Lunn VP agreed, and McWalters JA dissenting, also laid out how a sentencing court should approach the issue of a defendant’s participation in Father Wotherspoon’s campaign as follows:

“91. This court, comprising both of my two colleagues on this appeal, has already twice said that post-sentence participation in Father Wotherspoon’s campaign is a matter best left to the Executive. I consider that is right for the reasons they have given and that this court should adhere to its earlier decisions on this matter. Nevertheless, I would still permit sentencing judges a discretion to allow a token discount for this factor. Although such contributions to Father Wotherspoon’s ‘campaign’ do not amount to either positive good character nor are they readily borne of remorse, it seems to me that it may still be in the public interest to encourage a prisoner’s efforts in this regard. That assessment must be in the absolute discretion of the court, an exercise with which this court will not lightly interfere, but I cannot for myself envisage any circumstances which might warrant a deduction of more than 3 months for this factor.”

21.  It was therefore open to the judge to have the applicant’s participation in Father Wotherspoon’s campaign and related information dealt with by the Executive in the circumstances of the case.

22.  As important as it is for an offender to provide useful and timely information to the authorities, it is equally important that the authorities upon receipt of such information act in a timely and meaningful manner as the information allows.  The international drug trade is a serious problem, and places like Hong Kong must be geared and committed to not only deal with it domestically, but also internationally.

The comparing of cases

23.  In her letter to the Court, the applicant also mentioned, by way of comparison, several cases concerned with sentences passed on defendants for drug trafficking.  The cases to which she referred are HKSAR v Mlele Anna Mohamed, HCCC 280/2017, 1 November 2017, unreported, sentence being passed by Johnny Chan DHCJ; HKSAR v Tolentino Vargas Ayde Flor, HCCC 11/2017, 4 December 2017, unreported, sentence being passed by Campbell-Moffat J; and HKSAR v Argamaso Rizza Mae Lagdamen, HCCC 416/2016, 30 November 2016, unreported, sentence being passed by Toh J, all at first instance. 

24.  This Court has said time and again, that little, if any, utility is to be gained by comparing sentences passed in other cases, as no two cases are alike, and in any event, an appellate court’s task is to ensure that the sentence in question was proper in the circumstances of the particular case, and in accordance with relevant sentencing guidelines and principles.  The reference to these cases was mainly because the sentencing court gave a discount to a defendant for participation in Father Wotherspoon’s campaign or for the provision of information to the authorities.  The applicant is not being denied an opportunity to seek a reduction to her sentence for these matters as the judge has left it for the Executive to address at an appropriate time.  Depending on the circumstances of the case, it would of course be preferable that a sentencing court addresses all matters relevant to sentence, but there will be occasions because of the nature of the matter and the time required to deal with it that it needs to be left for the Executive to determine.

25.  We need to single out two cases that have been referred to in support of this application where the judge, in our view, has erred in sentencing the defendant and should therefore not be followed. 

26.  The first case is Tolentino Vargas Ayde Flor, where the judge reduced the defendant’s sentence from 22 years and 3 months’ imprisonment to 12 years and 3 months’ imprisonment, thereby discounting the sentence by 45%, which included the one third discount for a timely plea of guilty.  According to the judge’s reasons for sentence, the additional discount was given for the following reason:

“It is no surprise that you have very little information which can lead to a direct arrest and prosecution elsewhere, but what little you have supplied may be of value, along with other information in due course, and I intend to mark that assistance with as large a discount as I am able to do.”

27.  There was no justification for the judge to have given such a large discount in the circumstances described.

28.  The other case is Pereira Clemente Marcelo, where the same judge reduced the defendant’s sentence from 24 years’ imprisonment to 12 years’ imprisonment, thereby discounting the defendant sentence by 50%, which included the one third discount for a timely plea of guilty.  According to the judge’s reasons for sentence, the additional discount was given for the following reasons:

“... the Court of Appeal has, on numerous occasions reminded us that sentence is on a case-by-case basis, and that the sentencing judge has a degree of discretion in arriving at their final sentence, having heard all that has been said on the defendant’s behalf. I intend to reduce the starting point by one year for the work done with Father Wotherspoon, which is greater than the usual reduction, and should not be seen as an opportunity to suggest that this should be any kind of guideline. I do so, looking at the totality of the sentence and on the basis of the substantial starting point in this case and the significance of the support given. A reduction as large as this would not normally be given by this court. Taking into account all that has been said on your behalf, including your positive good character and personal background, which has not been gainsaid, your extreme vulnerability at the time of the offending and the clear remorse which you have shown, I am prepared, in my discretion and exceptionally, to reduce the starting point by a further 3 years. That makes a sentence of 20 years. I do so because of your dire personal situation, which in my view, does found a basis for mitigation of sentence, even for a crime as serious as this.”

29.  The judge then discounted the sentence by one third for the defendant’s guilty plea and sentenced him to 12 years’ imprisonment.  The substantial extra discount that was given by the judge for the participation of the defendant in Father Wotherspoon’s campaign and his personal circumstances was clearly contrary to, and a serious departure from, relevant sentencing principles.  A judge when exercising his or her sentencing discretion must do so judicially, and that requires having a sound and proper basis, as reflected from all the circumstances and bearing in mind established principles of sentencing, for the course of the action that he or she takes.  This was not done in these two cases.

Conclusion

30.  We are of the view that there is no basis for us to interfere with the resultant sentence imposed on the applicant which, when all things are considered, was appropriate in the prevailing circumstances.  Of the applicant’s participation in Father Wotherspoon’s campaign, including the provision of information, we leave it, as the judge did, for the applicant to take up with the Executive at an appropriate time.

31.  We therefore refuse leave to appeal against sentence and the appeal is dismissed.