HKSAR v. WILSON ALBERTO CORREDOR MEDINA AND ANOTHER

CACC 296/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 296 OF 2007

(ON APPEAL FROM HCCC NO 239 OF 2006)

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Hon Kwan JA (giving the judgment of the Court):

1.  This is an application for leave to appeal against sentence out of time. On 19 July 2007, the applicant, who was the first accused (D1), and Jose Emil Villamil Diaz (D2) were convicted in a trial before Nguyen J and a jury by a unanimous verdict of the offence of conspiracy to traffic in a dangerous drug. On 20 August 2007, each was sentenced to 21 years imprisonment.

2.  The applicant and D2 sought leave to appeal against conviction. Their application was dismissed by another division of this court (Stock V-P, Lunn J and Wright J) on 7 January 2010. They were represented in that application.

3.  The applicant filed a notice dated 28 July 2011 seeking leave to appeal his sentence out of time. He acts in person in this application.

4.  According to the case of the prosecution, the applicant and D2 were members of a Chinese and Colombian drug syndicate looking for potential buyers in Hong Kong of large quantities of cocaine stored in Mainland China. Between 18 January 2006 and 16 March 2006, the applicant, D2 and other members of the syndicate negotiated to supply cocaine to PW1, who was an undercover agent of the Drug Enforcement Administration of the United States. PW1 gave evidence he came into contact with members of the syndicate, including the applicant and D2, who went by the respective names of “Enano” and “Bruce”. The quantities of cocaine under negotiation ranged from 20 kg to 50 kg.

5.  On 2 March 2006, the syndicate arranged the applicant to deliver a sample of cocaine from Mainland China to PW2, an officer of the Customs and Excise Department posing as a potential buyer in Hong Kong. The sample was found to be 1,000.25 gm of a solid containing 680.18 gm of cocaine.

6.  The negotiations did not result in an agreement and PW1 returned to the United States. The applicant and D2 were arrested in Hong Kong on 16 March 2006.

7.  In passing sentence, the judge accepted that it could not be said with certainty what amount of drugs the syndicate was prepared to sell to PW1, and that it was not clear if the syndicate was in fact prepared to sell any drugs to PW1, as the syndicate was distrusting of PW1 who did not pay for the sample or returned it. The judge however declined to accept the submission of defence counsel that he should assess the starting point of the prison term based purely on the quantity of the sample delivered to PW1. Although no agreement was reached at the end of the day, it was quite clear the jury had found that the two accused, with the other persons named in the indictment, did agree, if all the terms could be agreed, that some cocaine would be sold to PW1.   

8.  The judge had regard to the comments of the Court of Appeal in R v Rodolpho De Los Santos, CACC 503/1985, that the continuance of the conspiracy was actively encouraged by the undercover agents when at times it looked as if otherwise it might peter out and that the defendant was entitled to some discount of the sentence on that ground. The judge was of the view that the same might be said about the present case and decided to take that into account although he would not give a precise discount for this factor.

9.  The judge had also considered the potential hardship which the applicant might face in serving his prison term in Hong Kong as a foreigner.

10.  Taking the above matters into consideration, the judge sentenced each of the applicant and D2 to 21 years’ imprisonment.

11.  The present application for leave to appeal against sentence out of time was made nearly four years after sentence was passed. The applicant did not provide any explanation for his delay in his supporting affirmation dated 28 July 2011 or in his grounds of appeal dated 4 January 2012. He explained to us at the hearing today the reasons for the delay. Firstly, he wanted to wait for the outcome of his application for leave to appeal against conviction. After that was dismissed, he lodged an application in August 2010 to the Colombian authorities for transfer to serve his sentence in his home country. He has waited for a long time and the result of his application for transfer is not yet known.

12.  In considering whether leave should be given to appeal out of time, we look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the application for extension of time. We would also look at the ground of the proposed appeal to see whether, by refusing leave to appeal, we were not shutting out a substantial and plainly arguable ground of appeal. Substantial grounds must be shown for the delay before we would grant indulgence, and the longer the delay, the more onerous is the duty of the applicant. The above are well established principles, see R v Wong Kai Kong & Anr [1990] 1 HKC 279 at 280H to 281D, HKSAR v Leung Yiu Ming & Anr [2000] 1 HKLRD 247 at 249G to 250A.

13.  We are of the view that the explanation provided by the applicant for the very substantial delay approaching four years does not constitute a valid excuse. Having considered his submissions, we do not think there is any arguable ground of appeal against sentence.

14.  The prison term of 21 years is in accordance with the sentencing guidelines of trafficking in cocaine laid down in R v Lau Tak Ming [1990] 2 HKLR 370. Even if only the quantity of the narcotic content of the sample were taken into account, the sentence cannot be said to be manifestly excessive. Besides, we think the judge was correct in declining to base his starting point on the weight of the sample for the reason he gave.

15.  We note that the judge had taken into account the potential hardship the applicant would face serving sentence in Hong Kong. In HKSAR v Hong Chang Chi [2002] 1 HKLRD 486 at paras 17 to 22, it was held that the overseas status of a defendant could not amount to mitigation to any substantial degree and should not be given a specific discount, and that when it comes to importing drugs from other jurisdictions into Hong Kong, public interest demands that a clear message should be sent to foreigners they will be treated no differently if they come here to break the law.

16.  The judge also did not appear to have considered the international element in this case involving an international drug syndicate intending to import a large quantity of cocaine into Hong Kong as an aggravating factor in sentencing.  The international element in trafficking has long been accepted as calling for an enhancement of the starting point of the prison term (Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 at 345G; HKSAR v Abdallah [2009] 2 HKLRD 437 at paras 21, 42 to 43).

17.  The main argument raised by the applicant is that he had been deprived of a fair trial by reason of the entrapment of PW1. This is not an argument available to him in his intended appeal against sentence. His application for leave to appeal against conviction has been dismissed by this court. In finding him guilty as charged, the jury must have rejected any idea that he was an innocent or reluctant victim being induced by the authorities to commit a crime which he would not otherwise have committed.

18.  We therefore dismiss the application for leave to appeal against sentence out of time.