HKSAR v. GUACHE ARVELAEZ LILIANA JOSEFINA

CACC 119/2019

[2019] HKCA 1303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 119 OF 2019

(ON APPEAL FROM HCCC NO 241 OF 2018)

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REASONS FOR JUDGMENT

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Introduction

1.  On 6 August 2018, the applicant pleaded guilty in the Magistrate’s Court to a single count of trafficking in a dangerous drug, namely 2.19 kilogrammes of a solid containing 1.86 kilogrammes of cocaine and was committed for sentence to the Court of First Instance. 

2.  On 3 April 2019, the applicant was sentenced by Campbell-Moffat J (the judge) to 17 years’ imprisonment.

3.  On 16 April 2019, the applicant filed a notice of application for leave to appeal against her sentence.  She complained that the sentence was “too long”.

4.  The applicant appeared in person at the leave hearing, having had legal aid refused on 31 May 2019.  At the conclusion of the hearing, I refused the applicant leave to appeal against her sentence and said that I would hand down my reasons for doing so in due course.  These are my reasons.

The case background

5.  The applicant first appeared before the judge on 31 January 2018.  Counsel for the applicant submitted a mitigation statement to the judge which set out her background and circumstances, together with an explanation of the events leading up to the commission of the offence.  It was stated that the applicant was a Venezuelan national who moved to Peru for work.  She lived there with her boyfriend with whom she had a child.  As she was an illegal immigrant, it was difficult for her to make a living and she eventually turned to prostitution.  She got heavily into debt and as a consequence, she agreed to traffic the drugs to Hong Kong for a reward of US$7,000.

6.  The applicant collected the drugs in Sao Paolo, Brazil, and took a flight to Hong Kong via Amsterdam, Netherlands.  She arrived in Hong Kong on 7 November 2017 and was intercepted by Customs officers.  They searched her backpack and found the drugs hidden inside.  She initially denied knowledge of the drugs and claimed that she came to Hong Kong in search of job opportunities.  The street value of the drugs at the time of the offence was $2,012,610.

7.  It was stressed during the course of mitigation, that the applicant deeply regretted what she had done and had made attempts to expose the other persons involved in the offence.  A letter from Father John Wotherspoon dated 24 December 2018 was submitted to the judge, setting out the applicant’s participation in his anti-drug campaign and the information that she had provided in identifying the other persons involved in the offence.  He stated that he had passed on the information to the Federal Police in Sao Paolo.  He also gave evidence before the judge on the matter.  It appears that it was unclear whether the information provided by the applicant had been “of practical use”.  The judge adjourned the proceedings to 3 April 2019 for further inquiries to find out what, if anything, resulted from the information provided by the applicant to the overseas authorities. 

The sentencing of the applicant

8.  At the adjourned hearing, the judge was appraised of the outcome of the inquiries and this led her to conclude in her reasons for sentence that the information had “not yet borne any fruit”.  The judge then proceeded to sentence the applicant.  Having reviewed the applicant’s background and mitigation, the judge noted that she had not been initially full and frank with the authorities but acknowledged that this may have been due to mental health problems the applicant was experiencing at the time. 

9.  Applying the sentencing guidelines, the judge adopted a starting point of 23 years and 9 months’ imprisonment which she enhanced by 2 years for the international element to 25 years and 9 months’ imprisonment: HKSAR v Abdallah [2009] 3 HKLR 437.  The judge mentioned that the applicant had attempted to assist the authorities, which seems to be a reference to the information she provided that had been conveyed to the overseas authorities, but it did not result “in any quantifiable success”.  The judge noted that if there was a change of circumstance and the assistance that she had rendered was fruitful, the matter could be taken up with the Executive: HKSAR v Araque Escobar Brigida Maria, unreported, CACC 364/2017, 7 November 2018.  As for the participation in Father Wotherspoon’s anti-drug campaign, the judge said she would give her the maximum discount of 3 months from the starting point: HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.  The judge then discounted the starting point by one third for the applicant’s guilty plea and sentenced her to 17 years’ imprisonment.

10.  The calculation of the sentence was in order.  The starting point of 25 years and 9 months equates to a total of 309 months.  After reducing the starting point by 3 months for the applicant’s participation in Father Wotherspoon’s anti-drug campaign, the total is 306 months.  A one third reduction for the applicant’s guilty plea brings this total to 204 months which equates to 17 years. 

The grounds of appeal

11.  As I have already noted the applicant complains that the sentence is “too long”, but unfortunately for her the sentence regime for drug trafficking in Hong Kong is very severe, and the sentence imposed on her by the judge was in accordance with the relevant sentencing principles and guidelines.

12.  In the course of this application, the applicant produced a letter from Father Wotherspoon dated 6 November 2019 in which he complains that the information the applicant had provided, concerning the identities of persons involved in her offence, was passed on to the Drug Enforcement Agency (DEA) of the United States of America by the Customs and Excise Department instead of the Brazilian authorities where the offence took place and where the persons she identified supposedly reside. 

13.  Father Wotherspoon, who was present in court, explained that in the proceedings below, the judge had been informed that there had been no reply from the overseas authorities in relation to the information provided by the applicant.  However, Mr Vincent Lee, for the respondent, submitted that the Customs and Excise Department received a response from the DEA on 2 April 2019 that the Brazilian authorities could not act on the information. This advice had been repeated in a later response from the DEA on 29 July 2019. It is to be noted that Father Wotherspoon, in his recent letter dated 6 November 2019, also stated that he had not received a reply from his police contact at Sao Paolo airport to whom he provided the information.  He added that he subsequently learnt that the contact was no longer stationed at the airport.

Discussion

14.  From what I can ascertain from the record of the proceedings before the judge, the information provided by the applicant was passed on to the DEA, which appears to be the route that law enforcement authorities in Hong Kong utilise in order to liaise with overseas law enforcement agencies in South America.  Prior to the hearing on 3 April 2019, the Customs and Excise Department had received no reply from the DEA and this had been conveyed to the judge in a letter from the Department of Justice. However, on the day of the hearing, counsel for the respondent informed the judge that a response had been received from the DEA which said that there had been no result on the information provided by the applicant.

15.  All this reveals how difficult it is when dealing with information provided by a defendant in relation to criminal activities overseas.  It will, for obvious reasons, depend on the jurisdiction concerned and the cooperation received as to whether any reliable response is forthcoming on which to ascertain whether the information is “of practical use”.  At this stage, no such information has been forthcoming and the matter cannot be taken further.

16.  It is generally the case that the courts have to rely on law enforcement authorities to make some evaluative assessment of information that is provided by a defendant in order to judge whether it is deserving of a reduction to the defendant sentence. See HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516.

17.  I do not find any fault with the sentence imposed on the applicant in light of the circumstances of her case.  It does leave open, however, that if there is a change of circumstance and the information turns out to be “of practical use” then that can be the subject of an application to the Executive for a reduction to her sentence.

18.  This application highlights a serious issue that needs to be addressed by the relevant authorities.  The use of drug couriers from third world countries is a worldwide problem and Hong Kong as regional transportation centre is very much a part of it.  Drug couriers are apprehended in Hong Kong on a regular basis, and when they realise the seriousness of their criminal conduct, some of them are prepared to provide information that identifies the persons behind this insidious crime.  This information should be properly utilised by law enforcement to hopefully stop the flow of this endless line of couriers.  I can only urge the authorities to use their best endeavours and take appropriate initiatives to utilise such information, if they have not already done so. 

Conclusion

19.  In light of the foregoing, I refused the applicant leave to appeal against her sentence.

20.  The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also warned of the consequences of doing so, which may include a direction of any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for renewal of her application.