Case Detail

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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	HKSAR	Respondent
	v
	COZ TUCTO DELIA	Appellant

_______________

Before:

Hon McWalters and Zervos JJA in Court

Date of Hearing:	9 December 2020
Date of Judgment:	9 December 2020

________________

J U D G M E N T

________________

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.

(Ian McWalters)	(Kevin Zervos)
Justice of Appeal	Justice of Appeal

Mr Andrew Li, ADPP (Ag) of the Department of Justice, for the respondent

Mr Frederic Whitehouse, instructed by Massie & Clement, assigned by the Director of Legal Aid, for the appellant

[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.

CACC 40/2019

[2019] HKCA 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 40 OF 2019

(ON APPEAL FROM HCCC 280 OF 2018)

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BETWEEN

	HKSAR	Respondent
and
	COZ TUCTO DELIA	Applicant

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Before: Hon McWalters JA in Court

Date of Hearing: 15 November 2019

Date of Judgment: 15 November 2019

Date of Reasons for Judgment: 15 November 2019

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REASONS FOR JUDGMENT

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1. The applicant faced a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 18 November 2017, at Hong Kong International Airport, the applicant unlawfully trafficked in 1.38 kilogrammes of a solid containing 903 grammes of cocaine.

2. Following her plea of guilty in the Magistracy and Committal for Sentence to the Court of First Instance in respect of this single charge, the applicant appeared before Deputy High Court Judge A Kwok (“the judge”) for sentence. On 1 February 2019, she was sentenced to 15 years and 10 months’ imprisonment.

3. Subsequently she filed a Notice of Application for Leave to Appeal her sentence (Form XI) on the sole ground that it was “too long”. Additionally, the court received a letter from Father Wotherspoon setting out details of the applicant’s assistance to his anti-drug campaign.

4. At the hearing of the application I granted her leave and an Appeal Aid Certificate and said I would hand down my reasons for doing so at a later time. This I now do.

The background to the offence

5. The Summary of Facts which the applicant admitted and which was used for the purpose of her sentencing revealed that on 18 November 2017, the applicant, a Peruvian female, arrived at the Hong Kong International Airport on a flight after travelling from Lima. She was intercepted for customs clearance and an ion scan test on her baggage showed a positive result for cocaine. No contraband was found in her baggage. However, whilst she was with Customs Officers for the purpose of a body search, she excreted 60 plastic pellets. These plastic pellets tested positive for cocaine so she was sent to North Lantau Hospital where a preliminary medical examination confirmed the presence of foreign objects inside her body. She was then taken to Queen Elizabeth Hospital for further discharge of these objects.

6. In total, she discharged 183 pellets which contained a total of 903 grammes of cocaine. The estimated value of the cocaine at that time was HK$1,672,580.

7. In a record of interview the applicant stated that she had swallowed about 185 pellets of cocaine in Lima on 16 November 2017 and had been promised she would receive US$9,000 upon successful delivery of the cocaine in Hong Kong. She had no information on the person who gave her the cocaine, nor on the person who was to receive her in Hong Kong.

8. The Summary of Facts concluded with the following paragraph:

“The defendant admits she knew she was unlawfully trafficking in the dangerous drugs seized from her at the time of the offence.”[1]

The mitigation

9. The applicant was of a clear record. Her counsel submitted that for the amount of cocaine involved, the starting point would fall between 20 and 23 years and this would then have to be enhanced by 1 to 2 years for the international element.

10. It was also submitted that whilst the applicant had participated in the campaign by Father Wotherspoon, it was “of fairly limited assistance”[2]. It was said on her behalf that the applicant and her family were trying to spread the word back in her hometown by warning other people not to allow themselves to be used as a drug mule. Her counsel accepted that such a discount, if allowed, would not exceed 3 months.

11. It was further submitted that she committed the present offence as she was in desperate need of money. A mitigation letter written by her was also submitted to the judge to show her remorse towards the offence.

The judge’s Reasons for Sentence

12. Having considered the facts of the case, background of the applicant and mitigation advanced by her counsel, the judge found that the only effective mitigating factor for the applicant was her guilty plea 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 family circumstances play any part in serious offences such as the drug trafficking.

13. The judge referred to the efforts of the applicant and her family in assisting Father Wotherspoon in his campaign, and said of it:

“… 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.”[3]

The judge did not provide any further explanation for why he reached this judgment.

14. The sentence the judge imposed was based upon a starting point of 21½ years’ imprisonment which the judge enhanced by 2 years for the international element. This was then reduced by one third to allow for the 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

15. The applicant was unrepresented at the leave hearing. In her Form XI she complained that the sentence she received was “too long”.

16. At the hearing of her application she asked the court to have regard to the fact that she had an 8 year old girl for whom she cared and who needed her. She also asked for the return of USD$1,855 which had been in her possession at the time of her arrest.

Discussion

17. The starting point adopted by the judge, namely, 21½ years, is in line with the sentencing guidelines and I can see no basis for interfering with it.

18. The 2-year enhancement for the international element is the maximum that can be imposed and I presume that the judge settled on this figure because the quantity of narcotic was close to the upper limit of the 500-1,000 grammes range[4] laid down by the Court of Appeal in HKSAR v Chung Ping Kun[5]. The assessment by a judge of the length of the enhancement is an exercise of discretion by him and it is important to any prisoner to know not just the amount of the enhancement but why a particular figure has been chosen.

19. It is now settled law that the decision of whether to award a discount to recognise assistance that is provided to Father Wotherspoon’s campaign lies within the discretion of the sentencing judge but, of course, that discretion must be exercised judicially and any discount awarded must not exceed 3 months.

20. An appellate court can only assess whether a discretion has miscarried by examining the reasons underlying its exercise. Here, those reasons are somewhat opaque for both the assessment of the enhancement for the international element and the refusal to award a discount for participation in Father Wotherspoon’s campaign. For the former it appears to be for the reason I have mentioned above and for the latter the only clue to the judge’s reasoning is a comment by the judge in the course of the mitigation which may suggest that he thought that anything he awarded would be inconsequential in view of the length of the sentence he would be imposing[6].

21. This aside, it is clear that the judge made an arithmetic error in his calculation of the final sentence. A one third discount of his starting point of 23½ years is 15 years and 8 months, instead of 15 years and 10 months.

Disposition

22. In view of the matters I have mentioned above I granted the applicant leave to appeal her sentence. I also granted an Appeal Aid Certificate to the applicant so that she could have the assistance of counsel in arguing her appeal.

	(Ian McWalters)
	Justice of Appeal

Mr Kelvin Tang PP, of the Department of Justice, for the respondent

The applicant appeared in person

[1] Appeal Bundle, page 5.

[2] Appeal Bundle, page 10S.

[3] Appeal Bundle, page 8J.

[4] An arithmetic calculation for an enhancement for 903 grammes of cocaine would, in fact, produce an enhancement of 1 year 9 months.

[5] [2014] 6 HKC 106

[6] See Appeal Bundle, page 12M-Q.

HKSAR v. COZ TUCTO DELIA

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