HKSAR v. JOHN WILMER GONZALEZ PINEDA

CACC 330/2017

[2018] HKCA 405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 330 OF 2017

(ON APPEAL FROM HCCC 365 OF 2016)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  On 3 October 2017 the applicant appeared before Anthea Pang J (“the judge”) in the High Court and pleaded guilty to a joint count of trafficking in “348.07 grammes of a crystalline solid / powder containing 249.95 grammes of cocaine”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, the applicant was sentenced to 10 years’ imprisonment.[1]

2.  The applicant subsequently filed a Notice of Application for Leave to Appeal against his sentence (Form XI). 

3.  When the application first came on for hearing on 29 May 2018 we adjourned it so that the applicant could pursue enquiries into matters arising from issues raised by the court.

4.  At the subsequent hearing of the application we dismissed it and said we would hand down our reasons for doing so at a later date.  These are our reasons.

The indictment

5.  Originally, D1 and the applicant were facing an indictment containing a count for conspiracy to traffic in dangerous drugs and the substantive count of trafficking in a dangerous drug, to which they both ultimately pleaded guilty, which was laid in the alternative.  The alleged conspiracy was particularised as having taken place “on or about the 20^th day of September, 2015 and the 23^rd day of October, 2015, both dates inclusive”.

The procedural and plea bargaining history

6.  It is important to the issues in this case to have an appreciation of the events leading up to the applicant’s ultimate plea of guilty.  The chronology is as follows:

Date	Event
19 August 2016	The applicant was committed to the High Court for trial.
20 September 2016	Legal aid was assigned to the legal representatives for the applicant.
28 September 2016	The listing hearing took place for the applicant’s case.  A trial date of 27 September 2017 was fixed.
Up to March 2017	Plea bargaining with the prosecution took place and continued to about March 2017 when it became clear that no agreement could be reached.  In these negotiations the applicant sought to persuade the respondent not to proceed against the applicant should D1 plead guilty.  The respondent refused this proposal.
1 June 2017	D1 indicated on his Pre-trial Review (PTR) Questionnaire that he intended to plead guilty to the substantive count.
5 June 2017	The first PTR of the applicant’s case was held.  At this PTR, D1 indicated he would plead guilty to the substantive count.  The prosecutor, Mr Leslie Parry, informed the court that he would need to take instructions from the Department of Justice on whether D1’s plea offer would be accepted.  The applicant, on the other hand, indicated he would apply to be discharged under section 16 of the Criminal Procedure Ordinance, Cap 221.[2] The applicant’s counsel at this time was Mr John Necholas.
13 June 2017	D1 was informed that his offer to plead guilty to the substantive count was acceptable to the prosecution.  On the same day, counsel for D1 confirmed D1’s acceptance of this plea bargain.
19 July 2017	An Amended Legal Aid Certificate was issued to cover the applicant’s section 16 application.
21 July 2017	The applicant’s counsel, Mr Necholas, was informed that D1’s offer to plead guilty to the substantive count had been accepted by the prosecution.
26 September 2017	The hearing of the section 16 application took place.  The judge ordered that the applicant be discharged on the conspiracy count but dismissed the application for discharge in respect of the substantive count.  Mr Necholas sought leave to be discharged because he was unwell.
27 September 2017	Mr Maurice Tracy appeared in place of Mr Necholas as counsel for the applicant.   The arraignment of D1 and the applicant was due to take place but the judge was informed that discussions were taking place between the applicant and the prosecution.  The arraignment was adjourned until 28 September 2017.
28 September 2017	The applicant indicated his intention to plead guilty to the substantive count.  The cases of D1 and the applicant were adjourned to 3 October 2017 for arraignment on the amended indictment.
3 October 2017	Both D1 and the applicant pleaded guilty to the substantive count.  Mitigation then took place and D1 and the applicant were sentenced.

The background to the offence

7.  The Summary of Facts that was admitted by the applicant and used for the purpose of his sentencing revealed that on 23 October 2015 at around 2040 and 2119 hours, the applicant and D1 were observed returning to their flat at Room A, Flat D, 7/F, Phoenix Apartments, Nos. 54–70 Lee Garden Road, Hong Kong.  The flat was kept under observation and when D1 opened the door of this flat from the inside at about 2135 hours, police officers approached and entered the flat.  A search warrant was presented to D1 and the applicant.

8.  The flat was searched and the following dangerous drugs were found:

(a) 2 bags containing 283.80 grammes of a solid containing 203.50 grammes of cocaine;

(b) 43 bottles containing 25.17 grammes of a powder containing 18.25 grammes of cocaine;

(c) 1 packet containing 39.10 grammes of a solid containing 28.20 grammes of cocaine; and

(d) 2 electronic scales with traces of cocaine and some drug packaging tools comprising 1 metal rod, 1 metal cylinder and 2 metal discs.

9.  Police officers also found in the flat a black paper box containing amounts of Hong Kong and American currency totalling HK$89,600 and US$244. 

10.  The applicant was searched and two keys were found in his possession, one of which fitted the metal gate to the flat and the other the front door.  He was also found to be in possession of three mobile telephones and cash of HK$7,400.

11.  In a subsequent video recorded interview, the applicant stated that he arrived in Hong Kong on 2 September 2015 and after spending two nights in a hotel, he stayed with his friend, D1, at his flat until the time of his arrest.  He brought about US$1,500 to Hong Kong for his visit and to support him in his further travel into China where he intended to obtain cloth samples.  He had the keys to D1’s flat and he never saw anyone else at the flat. The money contained in the black box did not belong to him and the HK$7,400 found in his possession was money that he had exchanged and it was the last of his money.

12.  The dangerous drugs were sent to the Government Chemist and they were subsequently confirmed to be 249.95 grammes of cocaine with an estimated street value of HK$371,554.

13.  The Summary of Facts concluded with the applicant admitting that he was trafficking with D1 in the dangerous drugs that are particularized in the first count of the indictment.

The mitigation

14.  The applicant was 40 years old at the time of his sentence.  He was born in Colombia and was educated up to secondary level there.  He claimed he was a retail merchant who sold casual shirts and trousers in Colombia, earning about US$3,000 to US$3,500 per month.  He lived with his common law wife and had two sons who are currently studying at university. 

15.  Mr Tracy, counsel for the applicant at the sentencing hearing, told the court that the applicant originally decided to come to Hong Kong with a view to possibly going into China in order to source some clothing items for his business.  Hoping that D1 could help him in his business, he contacted D1 and stayed in D1’s flat while waiting for money to be transferred to him from Colombia.  Whilst staying with D1, the applicant succumbed to the temptation to traffic in this cocaine.  

16.  Mr Tracy informed the judge that the applicant was deeply remorseful for his offending and had participated in schemes run by Father John Wotherspoon to warn people against the dangers of trafficking drugs to Hong Kong.

17.  There were two legal issues raised by Mr Tracy in the course of his mitigation, both of which concerned whether the applicant should receive a full one-third discount for his plea of guilty. 

18.  The first was whether the applicant was entitled to a full one-third discount as he had only pleaded guilty at the beginning of his trial.  In the end this was not an issue as the judge accepted that the applicant had been given legal advice on the effect of the judgment of the Court of Appeal in HKSAR v Ngo Van Nam[3]which led him to believe that this judgment would not apply to him.  This advice was given because the applicant had been committed to the High Court on 19 August 2016, before the judgment in Ngo Van Nam was handed down[4], but the correctness of the advice was questioned because the listing hearing, at which a date was appointed for the applicant’s trial, took place on 28 September 2016, after the judgment in Ngo Van Nam was handed down. 

19.  The second legal issue was whether the applicant should lose any part of his one-third discount on account of having made the section 16 discharge application. Mr Tracy submitted that he should not as his application could not be pursued if there had been guilty pleas at that stage.  Mr Tracy said the application for discharge was a serious and well considered application and it had succeeded partially. 

20.  In these circumstances, Mr Tracy submitted that the earliest, realistic time at which the applicant could have been given legal advice about his plea was after the application for discharge had been determined. Mr Tracy urged the judge to award the applicanta full one-third discount for his plea of guilty.

The judge’s Reasons for sentence

21.  The judge referred to the relevant sentencing authority[5] and  adopted a starting point for the applicant’s sentence of 12 years and 9 months’ imprisonment.

22.  When discussing the impact of the section 16 discharge application on the one-third sentencing discount for the plea of guilty the judge said:

“In the case of D2, I find that it was a tactical move by him or even if not so, then at least a decision to test his fortune and hope that he would get discharged by making the section 16 application albeit it was said to have been made upon legal advice. Such certainly does not sit with any genuine remorse and for the reasons I have given, I am therefore not prepared to grant the full one-third reduction as mentioned above.”

23.  The judge was of the view that the assistance given by the applicant to Father Wotherspoon’s campaign was not of any significance in terms of sentence reduction.  The judge ultimately awarded the applicant a sentencing discount of 21.6% from her initial starting point. This resulted in a final sentence of 10 years’ imprisonment.

The grounds of appeal

24.  In his Perfected Grounds of Appeal, Mr Phillip Ross, counsel for the applicant, put forward one single ground of appeal, namely, that the sentence was manifestly excessive because the judge reduced the discount for pleading guilty from one-third to 20% for the reason that “the Applicant had applied unsuccessfully prior to plea to have the count of trafficking in dangerous drugs discharged.”

25.  Mr Ross confirmed that the applicant had been informed by Mr Necholas of the plea bargain D1 had reached with the prosecution but argued that it was not inevitable that the same bargain would be available to the applicant. 

26.  Mr Ross relied on the fact that the applicant was partially successful in his section 16 application in having himself discharged from the conspiracy charge.  He argued that a similar outcome would have resulted if the judge had, in accordance with the requirement in Practice Direction 9.1.1, put the prosecution to an election on which charge they would proceed. 

27.  Mr Ross submitted that the true foundation for the discount for a guilty plea is the public interest.  He referred to the following comments of Kirby J in R v Cameron[6]:

“The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount.”

28.  Mr Ross maintained that as the judge did not apply the Ngo Van Nam decision to D1 and the applicant it was necessary to determine how the public interest criteria was applied prior to that judgment of the Court of Appeal.  He submitted that the position pre-Ngo Van Nam was only that a defendant had to plead guilty by or on the first day of trial to obtain a full one-third discount and here the applicant had done just that.

29.  Mr Ross argued that a section 16 discharge application is analogous to a preliminary enquiry that is held under section 81 of the Magistrates Ordinance, Cap 227 and that the new sentencing guidelines in Ngo Van Nam do not say that requesting such an enquiry would cause a defendant to lose the benefit of his full one-third discount for not having pleaded guilty at the first opportunity.

30.  However, if his argument that the applicant could plead guilty at any time up to the first day of trial and still retain his one-third discount is not accepted then, Mr Ross submitted, the issue becomes whether the judge had reduced the discount excessively by awarding the applicanta 21.6% reduction in sentence instead of 33.3%.

31.  Mr Ross submitted that whilst a reduction of discount to around 20% might have been appropriate for the situation of a failed voir dire the judge was wrong to equate an unsuccessful section 16 application with that situation and should not have reduced the discount below 25%.

32.  Mr Ross sought to distinguish a voir direfrom a discharge application on the basis that one of the factors justifying a reduced discount is that time has been expended by the court in determining contested matters.  A section 16 application, however, is determined on the documents before the court and so the time involved by the court in determining the application is likely to be significantly less than a voir dire. 

33.  Furthermore, in order to consider the section 16 application for the conspiracy charge, the court needed to see if the conspiracy was implemented by the drugs and paraphernalia seized almost one month later on 23 October 2015.  In other words, in order to discharge the applicant on the conspiracy count, the court would have had to look at all the evidence for the substantive count.  The amount of court time that related exclusively to the substantive count would have been minimal.  

The respondent’s reply

34.  Ms Vinci Lam, Senior Assistant Director of Public Prosecutions, for the respondent, submitted that a guilty plea entered after a failed section 16 application is of a similar nature to an unsuccessful voir dire or where a defendant unsuccessfully challenges aspects of the prosecution case in a Newton hearing, except that it could be said that a section 16 application goes more to the core of the prosecution case as it disputes the sufficiency of the evidence in establishing a prima facie case against the defendant.

35.  Ms Lam emphasized that here, the applicant not only challenged the sufficiency of the evidence in support of the conspiracy count but also the sufficiency of the evidence in support of the substantive count. 

36.  Ms Lam disputed Mr Ross’s claim that pre-Ngo Van Nam a defendant could plead guilty up to or on the first day of trial without being at risk of losing his full one-third discount for pleading guilty.

37.  Ms Lam further argued that to give the applicant a full one-third discount would cause D1 to feel a sense of grievance and that the real question was not whether the applicant was entitled to a full one-third discount but rather whether the amount of the downward adjustment adopted by the judge was appropriate in all the circumstances of the case. 

38.  Ms Lam submitted that the discount awarded by the judge fell within the usual range and there is no good reason for concluding that her judicial discretion miscarried. 

Discussion

39.  Whenever a defendant mounts a legal challenge to the prosecution case against him he almost invariably will have lost his first opportunity to plead guilty.  We say that because almost every legal challenge will only take place after the defendant has had an opportunity to receive legal advice on the charge he faces, the evidence in the prosecution case and the options available to him.

40.  We see no difference in principle between a challenge to the prosecution case in the form of a voir dire in relation to the admissibility of a specific piece of evidence, a challenge in the form of section 16 discharge application to the sufficiency of the whole of the evidence, or a challenge in the form of a Newton enquiry disputing sentencing facts.  All have in common a considered decision not to accept the prosecution case and the first two challenges, which relate to the defendant’s criminal liability, have in common, as a prerequisite to the challenge, a considered decision not to plead guilty. 

41.  Here, the applicant faced two counts.  The conspiracy count alleged a broader and more serious scope of criminal liability; the substantive count alleged a narrower and less serious scope of criminal liability.  D1 offered to plead guilty to the latter count and his plea was accepted.  Knowing that, the applicant, on the other hand, chose not to avail himself of this option and challenged the prosecution case in respect of both counts.

42.  The suggestion that D1’s plea bargain might not have been available to the applicantwe reject as wholly unrealistic.  If it was available to D1, against whom the prosecution case was stronger, then it certainly would have been available to this applicant.  However, if the applicant wanted to explore this possibility all he had to do was ask.  The fact that he did not, is a strong indication that his considered, preferred option was to take his chance on a section 16 application.

43.  As Ms Lam correctly points out, the purpose of the applicant’s section 16 application was not to eliminate the conspiracy count from the trial, unlike an application under Practice Direction 9.1, but rather was to achieve an acquittal on both counts, thereby bringing the prosecution against the applicant to an end.

44.  Mr Ross submitted that Ngo Van Nam does not contain any comment by the Court of Appeal that would suggest a defendant could not still challenge the prosecution case by way of preliminary enquiry under section 81 of the Magistrates Ordinance without being at risk of not receiving his full one-third discount should he later plead guilty.  We do not agree.  In Ngo Van Nam the Court of Appeal made it clear that the full one-third discount would only be available to those that pleaded guilty at the first opportunity and it identified for cases being committed to the Court of First Instance when it was that the first opportunity arose.  A decision to elect a preliminary enquiry will be a considered decision made after receipt of legal advice and after the defendant and his legal representative have been given, and had a chance to consider, the evidence in the committal bundle.  It is implicit in the defendant’s decision that, at this first available opportunity, he is not exercising the option available to him of pleading guilty but rather he is electing to challenge the prosecution case.

45.  We do not accept Mr Ross’s argument that pre-Ngo Van Nam a defendant, could, in effect, do what he liked before the first day of trial without being at risk of losing his one-third discount as long as he still pleaded guilty on the first day of trial.  It is true that a defendant who took no steps before the first day of trial to challenge the prosecution case could claim the benefit of the full one-third discount.  But the rationale for the discount has long been the public interest, a key element of which is the saving of public expense and judicial resources that are involved in a trial.

46.  That is precisely why the discount is reduced when that aspect of the public interest is affected by a defendant challenging the prosecution case against him.  The discount is reduced whether the challenge takes place before the trial proper starts, as in an unsuccessful voir dire, or during the course of a sentencing hearing as in an unsuccessful Newton hearing. The timing of a defendant’s challenge did not, pre-Ngo Van Nam, determine whether he lost the benefit of the full one-third discount; rather it was the fact that by mounting the challenge the defendant had caused prejudice to the public interest.  What the Court of Appeal decision in Ngo Van Nam gave effect to was a recognition, long held, that delay, by itself, adversely impacted on the public interest and not to distinguish between those defendants who pleaded guilty early and those who pleaded guilty late was to introduce unfairness into the sentencing process.

47.  Thus, we see no reason in principle why, pre-Ngo Van Nam, a defendant who unsuccessfully challenged the prosecution case by way of a section 16 discharge application should not be deprived of part of his one-third sentencing discount. 

48.  But, principle aside, the question of whether a defendant should lose part of his discount will always have to be answered within the context of his particular circumstances.  Here, the applicant faced two counts, one more serious than the other.  Had the applicant offered to plead guilty to only the substantive count and had the prosecution refused that offer, and had the applicant then only sought a discharge on the conspiracy count and succeeded on that application, then he should not be deprived of his full one-third discount.  This, in fact, simply reflects what would happen in a trial situation when a defendant pleads guilty to a less serious count, that plea is not accepted by the prosecution and in the subsequent trial the defendant is convicted of only the lesser count to which he had earlier entered a plea of guilty.

49.  But that was not the case in respect of this applicant.  In respect of D1, the prosecution had already indicated a willingness to accept a plea to the substantive count in satisfaction of the indictment. If the applicant was willing to offer such a plea and it had been accepted, as it almost certainly would have been, then there was no need for the section 16 application.  In truth, the section 16 application was only necessary because the applicant wished to challenge the prosecution in respect also of the substantive count.

50.  The judge being entitled to decide that she would not award the applicant a full one-third discount of his plea of guilty, the only remaining issue is whether in reducing the sentencing discount to 20% the judge erred in the exercise of her sentencing discretion. 

51.  Mr Ross submitted that, in assessing the amount by which the sentencing discount should be reduced, the judge erred by equating an unsuccessful section 16 application with an unsuccessful voir dire.  There is nothing in anything the judge said which would suggest she reduced the applicant’s discount by the amount she did because she treated the section 16 application as equivalent to a voir dire.  What the judge said was:

“Therefore, insofar as D1 is concerned, I would grant him a full one-third reduction for his plea. However, insofar as D2 is concerned, I would only grant him a reduction of about 20 per cent as he only tendered his guilty plea to this substantive offence after he had failed the section 16 application in relation to this count and only on the day when he was scheduled to be arraigned and tried.

At paragraph 200 of the Court of Appeal in Ngo Van Nam, it was observed that:

‘Other than in exceptional circumstances, the remorse of a defendant who pleads guilty is taken to be subsumed in the discount of one-third, afforded for a plea of guilty. We are satisfied that it is not only well established but also working in practice.. Accordingly, we are satisfied that it is appropriate to continue sentencing on that basis.’

Thus, it can be seen that there is the element of remorse subsumed in the one-third reduction given to a guilty plea whether one adopts the previous sentencing practice or the revised one detailed in the Court of Appeal judgment in Ngo Van Nam.

In the case of D2, I find that it was a tactical move by him or even if not so, then at least a decision to test his fortune and hope that he would get discharged by making the section 16 application albeit it was said to have been made upon legal advice.  Such certainly does not sit with any genuine remorse and for the reasons I have given, I am therefore not prepared to grant the full one-third reduction as mentioned above.”

52.  We can find no error in these comments of the judge.  The judge reached her own assessment of what was an appropriate reduction of the one-third discount for this applicant and the fact that it was similar to the reduction commonly made for a failed voir dire is neither here nor there.

53.  There being no apparent error by the judge in the way she directed herself on the performance by her of this sentencing task, the question becomes whether the reduction is so excessive that the judge’s exercise of her sentencing discretion must have miscarried.

54.  In order to answer this question we would normally examine the range of reduced discounts to see whether the reduction ordered by the judge was so outwith the range that, barring an acceptable explanation, the court is driven to conclude that the reduction in discount is excessive.  However, because the amount by which the discount is reduced is always a fact sensitive matter the range will inevitably be a broad one.

55.  As Ms Lam points out, the reduced discount awarded by the judge is within this broad range for a challenge by a defendant to the prosecution case.  Mr Ross suggests that the discount should not have been less than 25%.  In the circumstances of this case where 3 court sitting days were lost as a result of the applicant’s conduct, we are not persuaded that it can be said that the judge’s sentencing discretion miscarried.

Conclusion

56.  For these reasons we dismissed the applicant’s application for leave to appeal his sentence.