Case Detail

CACC 98/2021 [2024] HKCA 526

On appeal from [2021] HKCFI 968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2021

(ON APPEAL FROM HCCC NO 301 OF 2019)

_______________

	HKSAR	Respondent
	v
	Quintero Bernal Diego-Jhovanny	Applicant

_______________

Before:

Hon Zervos JA in Court

Date of Hearing:	6 June 2024
Date of Judgment:	7 June 2024

________________

J U D G M E N T

________________

1. The applicant and his girlfriend, Jimenez Sosa Angelica-Maria, whose trial designations were D1 and D2 respectively, stood trial in the High Court before Campbell-Moffat J (the Judge). They were jointly charged with a single count of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134), namely 1,723 grammes of a solid containing 1,082 grammes of cocaine (Count 1). The indictment was later amended to allege two alternative counts of trafficking in a dangerous drug, namely 1,230 grammes of a solid containing 740 grammes of cocaine against the applicant (Count 2); and 493 grammes of a solid containing 342 grammes of cocaine against D2 (Count 3). The alternative counts represented the quantity of cocaine seized from each of them. On 16 March 2021, they pleaded guilty to the alternative count alleged against them.

2. On 9 April 2021, the Judge sentenced the applicant to a term of imprisonment of 13 years and 1 month.

The procedural history

3. On 6 May 2021, the applicant applied for leave to appeal against conviction, on the ground that his guilty plea was null and void as he was coerced into entering the plea. His application for legal aid was refused on 15 June 2021.

4. On 26 April 2022, the applicant was granted a legal aid certificate to assist him in his application for leave to appeal against his conviction. On 24 November 2022, in the course of the hearing of the leave application, the applicant, through his counsel, Mr Jeremy Cheung, withdrew his application to appeal against conviction. The Court, in its judgment, handed down on 6 December 2022, addressed the applicant’s complaint that he had been forced to abandon his defence of duress and plead guilty to the alternative count. It was noted that the applicant’s counsel at trial made an application to the Judge for a ruling on the elements of the defence of duress. The Judge instead gave an opinion on the viability of the applicant’s defence of duress based on a limited understanding of the facts, rather than on evidence properly adduced either in a voir dire or a trial. [1]

5. On 2 December 2022, the applicant filed an application for leave to appeal against sentence out of time. Attached to the application was an affirmation dated 22 November 2022 (the applicant’s 1^st affirmation), in which he complained that the sentence was manifestly excessive. The applicant applied for legal aid to appeal his sentence, which was refused on 14 December 2022.

6. After an exchange of correspondence, it was eventually confirmed by Mr Jeremy Cheung and Ms Dorothy Tang that they would act on behalf of the applicant under the Bar Free Legal Service Scheme. On 30 November 2023, Perfected Grounds of Appeal Against Sentence were filed in which it was advanced that the Judge failed to take into account duress as a mitigating factor in sentencing and give appropriate sentencing reductions accordingly (Ground 1); the Judge erred in failing to consider that the applicant was a victim of human trafficking (Ground 2); and in all the circumstances, the sentence passed was not fair, balanced and just (Ground 3).

7. In an affirmation dated 19 October 2023 (the applicant’s 2^nd affirmation), in support of his leave application out of time, the applicant stated that he did not appeal his sentence because he had always wanted to demonstrate his innocence. He maintained that he pleaded guilty after seeking advice because he considered the jury might not be able to understand the dangerous situation he was in. He maintained that taking into consideration the facts of the case, his sentence was excessive.

The admitted facts

8. The facts outlined to the Judge and admitted on behalf of the applicant were as follows.

9. On 30 June 2018, the applicant and D2 were intercepted by customs officers on arrival at Hong Kong International Airport from Columbia via Sao Paulo, Brazil. Suspecting that they had contraband internally concealed in their bodies, they were taken to North Lantau Hospital for examination, where foreign objects were found inside their body cavities.

10. The applicant was arrested and cautioned and, in response, said there was cocaine inside his body, consisting of about 40 items. D2 remained silent when she was arrested and cautioned.

11. They were taken to Queen Elizabeth Hospital, where the applicant discharged 73 pellets, which were subsequently certified to contain the amount of cocaine, the subject of Count 2. D2 discharged 29 pellets, which were subsequently certified to contain the amount of cocaine, the subject of Count 3.

12. In a video recorded interview on 2 July 2018, the applicant stated, amongst other things, the following:

(i)    he took a flight from Bogota, Columbia, to Hong Kong via Sao Paolo, Brazil and Dubai, United Arab Emirates;
(ii)   he owed a Columbian male named Mauricio Arango Ospina (Ospina) the sum of Columbian Pesos $30 million (the equivalent of approximately US$10,000), and to settle the debt, he was told to swallow pellets, containing the drugs on 28 June 2018, and deliver them in Macao;
(iii)  D2 was his girlfriend, who also swallowed pellets of drugs to help settle the debt;
(iv)  the male arranged the flights to Hong Kong and purchased tickets to Macau for both of them;
(v)   he and D2 would be paid a reward of US$5,000 for completing the drug delivery, although he later claimed he did not think he would be paid the money; and
(vi)  he confirmed that he had discharged 73 pellets of drugs.

13. In a written recorded interview on 2 July 2018, D2 stated, amongst other things, the following:

(i)    the applicant was her ex-boyfriend;
(ii)   the applicant was indebted to Ospina, who instructed them to swallow drugs and transport them to Hong Kong;
(iii)  the applicant swallowed over 70 pellets of drugs whilst she had swallowed 29 pellets of drugs in a hotel in Columbia;
(iv)  she confirmed she discharged 29 pellets, which she believed contained cocaine.

14. The estimated street value of the drugs seized was $2,292,095.

15. The applicant and D2 admitted that, at the material time, they had knowingly possessed the drugs for the purpose of unlawful trafficking.

The defence case

16. Prior to the applicant’s plea of guilty on 9 April 2021, his defence was that he had committed the offence under duress, as Ospina had allegedly threatened to hurt him and his family if he did not deliver the drugs.

17. At the time of sentencing, the applicant was 39 years old, of previous good character and had a 11-year-old son. He lived in Columbia and had his own business importing gym equipment into Columbia. To finance his business, the applicant had obtained a loan of 30 million Columbian pesos from Ospina, who had details of his whole family, including his young son and elderly parents. As the applicant was unable to repay the loan, he was threatened with a pistol by Ospina, who asked him to transport drugs into Hong Kong.

18. It is appropriate to note D2’s position in the case against her. She claimed that she was made to transport the drugs because of the applicant’s indebtedness to Ospina. She also claimed that she had been threatened by Ospina. However, it later emerged during the proceedings that she had wanted to plead guilty to the offence at an early stage of the proceedings and did not want to run the defence of duress as previously suggested by her counsel.[2] This factor became a relevant consideration when the Judge gave D2 as well as the applicant a full one third discount for their guilty pleas late in the proceedings.

The reasons for sentence

19. The Judge referred to the procedural history of this case[3] and the applicant’s background and mitigation submitted by defence counsel[4]. The Judge referred to the sentencing guidelines for trafficking in cocaine as set out in HKSAR v Abdallah[5].[6] Noting that the applicant pleaded guilty to importing 740 grammes of cocaine, this would fall into the bracket for trafficking in 600 to 1,200 grammes of cocaine, which warranted a starting point of between 20 and 23 years’ imprisonment. Having determined, with reference to HKSAR v Herry Jane Yusuph[7], that the applicant’s role was a mere courier, which warranted a starting point of 20 years and 9 months, the Judge gave a further 6 months’ discount on account of the threats that the applicant faced. She enhanced the starting point by 9 months on account of the international element, resulting in a nominal starting point of 21 years’ imprisonment.[8]

20. As to the level of discount to be given, she took into account the guidelines in HKSAR v Ngo Van Nam[9], and despite the applicant pleading guilty on day 5 of the trial, the Judge took into account the procedural history prior to trial, and gave the applicant a full one third discount.[10] She gave a further reduction of 8 months and 3 months, respectively, for the applicant’s offer of assistance to authorities and his participation in Father Wotherspoon’s anti-drug programme,[11] resulting in a sentence of 13 years and 1 month’s imprisonment.

The submissions

21. Ms Audrey Parwani, for the respondent, accepts that a court will not disallow a meritorious application which is out of time, but it will depend upon the relevant circumstances. However, she submits that this is not such a case and there is no good reason for the delay advanced by the applicant. She points out that in the applicant’s 2^nd affirmation, he stated that the reason he had originally applied for leave to appeal against conviction was only because he wanted to demonstrate his innocence. She argues that appealing against conviction is no bar to filing an appeal against sentence at the same time. She supports her argument by making the following points. This application was made more than 19 months out of time, during which the applicant had the full benefit of legal advice and representation. It is apparent from the date of the applicant’s 1^st affirmation (22 November 2022) that he had in mind the intention to appeal against sentence well before the hearing for leave to appeal against conviction but chose not to do so. The applicant decided at the leave hearing against conviction to withdraw his application and to supplement this with an application for leave to appeal against sentence, just as he had sought a preliminary ruling during his trial to test his defence of duress, and decided to plead guilty when it did not appear viable, only to then appeal against conviction. Ms Parwani submits that these were tactical decisions, and not a good reason for the delay. She adds that this is typified by a request for assessment as a victim of human trafficking made on 14 November 2023, over 5 years after the commission of the offence and about 1 year after he had filed his leave to appeal against sentence out of time. She submits that this application does not warrant the court to exercise its discretion to grant leave out of time.

22. There is merit in the respondent’s submission and I agree that there is little or no justification for the delay in filing the leave application against sentence. It is clear that the applicant had in mind appealing his sentence but decided not to do so early in these proceedings.

23. I turn to consider the merits of the grounds of appeal that have been advanced by the applicant.

Grounds 1 and 3

24. The Judge had correctly referred to the sentencing guidelines in HKSAR v Abdallah. It was accepted by the parties that trafficking in 740 grammes of cocaine would warrant a starting point of about 20 years and 9 months. No issue is taken with the starting point. As regards the international element which was an aggravating feature, the Judge had only enhanced the starting point by 9 months, which, as submitted by the respondent, was below the guidelines of 1 to 2 years for between 500 and 1,000 grammes of cocaine as set out in HKSAR v Chung Ping Kun[12]. It is submitted by the respondent, that given the circumstances of the case and the amount of drugs involved, the Judge could have further enhanced the sentence for this factor.

25. Mr Cheung in his written submission argued that the Judge did not give any weight to the duress and threats faced by the applicant in committing this offence, but instead considered it as a factor of mitigation subsumed in the one third discount for the his guilty plea.

26. He refers to cases where it had been held that a sentencing court should consider whether a defendant had been subjected to coercion or threats in committing the offence: Secretary for Justice v Wan Hoi Ming[13], applying R v John Taonis[14]. However, it has also been held that considerable care had to be taken not to accord “stress and fear” too much weight lest it be thought that it in any way justifies what was done: HKSAR v Yip Chu Sum[15].

27. Lord Bingham in R v Hansan, having endorsed the observation that courts should be alive to the need to apply reasonable, but strict standards for the application of the defence of duress because verification of such a defence may prove difficult, went on to explain that the circumstances of the case may be taken into account when sentencing[16]:

“If it appears at trial that a defendant acted in response to a degree of coercion but in circumstances where the strict requirements of duress were not satisfied, it is always open to the judge to adjust his sentence to reflect his assessment of the defendant’s true culpability.”

28. Mr Cheung relied on the above quoted passage but left out the phrase as “it appears at trial”, which would indicate the need for an adjustment to a sentence for this factor, there would have to be a reliable basis to do so.

29. Without any prior notice, Mr Cheung, in his oral submissions, accepted that the Judge had taken into account the applicant’s mitigation of alleged threats made against him. Whilst the Judge had mentioned that the one third discount for guilty plea “includes factors such as remorse, good character etc” and did caution against double counting,[17] she had in fact, exercised her discretion to give a discount of 6 months on account of the alleged threats faced by the applicant when determining the starting point.[18] However, he argued that the Judge did not follow the sequence of steps in Herry Jane Yusuph, and as a result, discounted the 6 months from the starting point rather than after the one third discount, thereby depriving him of a sentence of 12 years and 11 months, namely a difference of 3 months.

30. Ms Parwani submits that this is not a material matter as the Judge was generous in the enhancement she gave for the international element and the discount she gave to the applicant’s sentence for his guilty plea. She argues that the Judge gave the applicant a full one third discount when she was not obliged to do so. According to the guidelines set out in HKSAR v Ngo Van Nam, the Judge could well have given a discount of less than 20% as the applicant pleaded guilty after the trial had started.

31. In addition to the one third discount, the Judge gave 3 months’ reduction for the applicant’s participation in Father Wotherspoon’s programme and a 8 months’ reduction for the applicant’s willingness to assist the authorities, notwithstanding he did not in fact give any information which lead to any fruitful result. She notes that this equates to an overall discount of about 39%. She contends that the applicant has no cause for complaint as the sentence was lenient in the circumstances.

32. In my view, there is no basis for complaint of the sentence imposed on the applicant. He was treated leniently by the Judge and given generous discounts to his nominal sentence.

33. Notwithstanding that the applicant had abandoned his defence of duress, the Judge nevertheless accepted that threats had been made to him and that he did the bare minimum in smuggling the drugs. She reduced his starting point by 6 months to 20 years and 3 months’ imprisonment.[19] It is, therefore, not correct that the Judge had subsumed “duress” in the one third discount for his guilty plea as originally argued by Mr Cheung. She gave an additional discount of 6 months for this factor.

34. As already noted, the applicant pleaded guilty during the course of the trial. However, the applicant was given the full one third discount for his guilty plea, which was not timely and could have been considerably less. As I understand the Judge’s reasoning, it appears he was given the full one third discount because of the position taken by D2 in wanting to plead guilty at an early stage and that the applicant was misinformed about the law of duress. In her reasons for sentence, the Judge noted that D2 at an early stage was prepared to plead guilty in respect of the drugs she imported into Hong Kong and did not want to run the defence of duress. However, because of miscommunication by her counsel, her position was conveyed to the prosecution and the court at some later stage. With this in mind, she considered that D2 deserved to be treated as if she had entered her plea at the earliest opportunity and “at the very least, be entitled to a full one third discount.”[20] She explained that the applicant had been “left out of this loop” and she extrapolated he should also receive a full one third discount for two reasons: [21]

“Firstly, because he and his counsel were unaware of the original offer and response which, no doubt would have been something Mr Marray would have wished to canvass and thereafter to advise upon. There was no harm to D1 to make the offer in those circumstances even if he had not made such an offer independently. Secondly, as discussed above, I believe there was a misinformed understanding as to the law of duress through no fault of his own, at some stage, the defendant came to believe that this was a defence which was properly open to him on the facts.”

35. I have already given a judgment in respect of the Judge’s ruling on the defence of duress in this case, which sets out the circumstances and outcome of the opinion given by the Judge as to the viability of the applicant’s defence of duress. This was in response to the applicant’s original complaint against his conviction that he had been forced to plead guilty when he wanted to run the defence of duress.

36. Clearly, from an overall assessment of the sentence the applicant received, he was treated leniently in the circumstances. These grounds of appeal are not reasonably arguable.

Ground 2

37. The applicant now raises a request for assessment as a victim of human trafficking over 5 years after the commission of the offence.

38. Mr Cheung referred to the recent decision of this Court in HKSAR v Raman Kapusamy[22], which he wrongly assumed it forbade consideration by a sentencing court that a defendant was a victim of human trafficking. In that case, this Court addressed the argument that a court, when sentencing an international drug courier, should place greater emphasis on an offender’s vulnerability, role and culpability. Reference was made to the international policies and obligations regarding victims of human trafficking. In the section, entitled “The respondent’s reply”, the Court said:

“30. As for the suggestion that the courts in Hong Kong should follow the approach of other jurisdictions in sentencing so-called “drug mules”, it was the respondent’s position that the Hong Kong courts have on several occasions considered the application of the Sentencing Council Guideline in England and Wales, but found it inapposite in the context of Hong Kong, which aims in this area of the law at consistency of punishment and severe sentences. An approach which allows personal circumstances such as alleged poverty, gullibility, or being a victim of human trafficking to become a mitigating factor does not sit well with the established principles of this Court. Indeed, such a policy could be exploited and abused by international drug traffickers, who would use vulnerable persons to deliver their dangerous drugs. Such persons would then use such vulnerability to plead for a reduced sentence. This would jeopardise the sentencing regime in Hong Kong, which has proved to be effective in combatting, or at least containing, the evils of international drug trafficking^{^[23]}.”

39. Later, in the section entitled “Discussion”, the Court addressed the submissions on this point, stating, amongst other things:

“71. … it is a matter for the courts of Hong Kong how they determine their own policy for combatting drug trafficking in this jurisdiction. As was pointed out in Kilima Abubakar Abbas, Hong Kong has been working out its own guidelines in respect of trafficking in dangerous drugs for more than 40 years and rather longer than most other jurisdictions[24]. Noting that sentencing policy will vary from country to country, it was also said in Kilima Abubakar Abbas that[25]:
‘70. In the context of Hong Kong, sentencing practice and policy will also have to reflect the fact that this is a city with its own legal system, whilst nevertheless part of a large country with a different legal system; and it will, as a matter of comity, want to bear in mind the attitudes of its neighbours to particular crimes and the seriousness with which those crimes are regarded by its neighbours.
71. Since the scourge of drug trafficking is a world-wide problem, it can sometimes be useful to look at the way other countries choose to tackle the problem. However, each country will shape its own approach to suit its own conditions, the desires of its own people, its attitudes to punishment as well as the particular manifestation of the problem in its respective community.’
72. Having said that, we do recognise that very occasionally there may be a defendant who, for one reason or another, perhaps because of physical or mental disability, infirmity or frailty, or because he has been genuinely scammed or tricked, becomes involved in a crime from which he then finds it difficult to extricate himself. Such a defendant comes to realise at some late stage what is required of him but nevertheless carries on with his part in the crime knowing what he is doing, however reluctantly, but in circumstances falling short of duress.
73. Judges will approach such cases, when they arise, with realism, fairness and common sense, in the knowledge that such claims are very easy to make after a defendant has been caught but less easy to substantiate. What we would expect, as a minimum, where such circumstances are advanced is an immediate full and frank explanation by the defendant to the relevant authority upon arrest as to how he came to be involved; and the existence of other evidence suggesting that the defendant became unwittingly ensnared and reluctantly involved in the commission of the offence, from which he found it difficult to extricate himself. Such claims will normally follow a plea of guilty. If such evidence is lacking, the defendant should be expected to give evidence and be cross-examined on his contention and the circumstances which caused him to commit the offence at a Newton hearing.”

40. As stated by the Court, there will be cases where a defendant can raise their personal circumstances and the circumstances in which they became involved in trafficking dangerous drugs, but there has to be a sound basis for doing so and such cases should be approached with “realism, fairness and common sense”.

41. Ms Parwani explains that the objective of the regime in Hong Kong in the identification of Trafficking in Persons (TIP) victims, apart from the involvement of the victim in the investigation of the case, is to provide timely protection and assistance to victims of TIP, as well as for them to act as witnesses in legal proceedings and the facilitation for their return to their home country in appropriate cases. See ZN v Secretary for Justice (2020) 23 HKCFAR 15. She submits that the applicant cannot argue that the Judge had erred or could be criticized for not taking into account the applicant's potential claim of being a victim of human trafficking during the sentencing procedure when it was never raised, either by the applicant, or through his legal representative at any stage of these legal proceedings, including in mitigation.

42. In any event, the Judge in sentencing was aware of the threats and circumstances put forward during the “duress” hearing and in mitigation by his counsel, which she had already taken into account. This ground of appeal is not reasonably arguable.

Ground 3

43. Mr Cheung argues that the Judge, in addressing the sixth step in Herry Jane Yusuph, did not stand back and look at the overall sentence and failed to consider duress as a mitigating factor and the applicant as a potential victim of human trafficking. He claimed that this resulted in an unfair and unjust sentence.

44. The criticism that the sentence was unfair and unjust is not only unsupported by the facts and circumstances of the case, but also based on a misunderstanding of the sixth step of Herry Jane Yusuph. As explained by this Court in HKSAR v Lee Ming Ho[26], “the Court in Herry Jane Yusuph was not advocating some form of unprincipled, final reduction whenever a sentencing judge feels the sentence might be an overbearing or crushing one for the defendant concern: it was a warning of the danger of adding up the sentences for multiple counts or multiple aggravating factors leading to an inflated overall starting point out of proportion to the defendant’s criminality.”

45. In my view, the applicant has no cause for complaint in the sentence that he received, which was lenient in the circumstances. This ground of appeal is not reasonably arguable.

Conclusion

46. There is no merit in this application as the grounds are not reasonably arguable. The application for leave to appeal against sentence out of time is refused.

47. The applicant is reminded of his right to renew his application for leave to appeal against his sentence out of time to the Court of Appeal, but he is also informed of the consequence of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

	(Kevin Zervos)
	Justice of Appeal

Ms Audrey Parwani, SPP, of Department of Justice, for the respondent

Mr Jeremy Cheung and Ms Dorothy Tang, instructed by Bar Free Legal Service Scheme, Hong Kong Bar Association, for the applicant

[1] HKSAR v Quintero Bernal (Diego-Jhovanny) [2023] 1 HKLRD 156.

[2] AB, 433C.

[3] Appeal Bundle (AB), 426I-430K.

[4] AB, 430N-434B.

[5] HKSAR v Abdallah [2009] 2 HKLRD 437.

[6] AB, 434E-434J.

[7] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[8] AB, 436M.

[9] HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

[10] AB, 438G-440I.

[11] AB, 440K-441G.

[12] HKSAR v Chung Ping Kun [2014] 6 HKC 106.

[13] Secretary for Justice v Wan Hoi Ming [2017] 1 HKLRD 1205, at [47].

[14] R v John Taonis(1974) 59 Cr App R 160.

[15] HKSAR v Yip Chu Sum, unrep., CACC 367/2001, 13 June 2002, at [23].

[16] R v Hansan [2005] UKHL 22, at [22].

[17] AB, 437L-Q.

[18] AB, 435B-D.

[19] AB, 434-435, at [18].

[20] AB, 439H-J.

[21] AB, 439K-Q.

[22] HKSAR v Raman Kapusamy, unrep., CACC 32/2020 and CAAR 2/2022, 22 April 2024.

[23] HKSAR v Somphaksorn Lamyai and Another (Unrep., CACC88/2018, 17 December 2008); HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, at [71].

[24] Kilima Abubakar Abbas, at [72].

[25] Ibid., at [70]-[71].

[26] HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186, at [85].

CACC 98/2021

[2022] HKCA 1750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2021

(ON APPEAL FROM HCCC NO 301 OF 2019)

________________________

	HKSAR	Respondent
	v
	Quintero Bernal Diego-Jhovanny	Applicant

________________________

Before: Hon Zervos JA in Court

Date of Hearing: 24 November 2022

Date of Judgment: 24 November 2022

Date of Reasons for Judgment: 6 December 2022

________________________

REASONS FOR JUDGMENT

________________________

Introduction

1. The applicant and his girlfriend, Jamenez Sosa Angelica-Maria, who were D1 and D2 respectively, stood trial in the High Court before Campbell-Moffat J (the judge). They were originally jointly charged with a single count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, namely 1,723 grammes of a solid containing 1,082 grammes of cocaine (Count 1). The indictment was later amended to allege two alternative counts of trafficking in a dangerous drug, namely 1,230 grammes of a solid containing 740 grammes of cocaine against the applicant (Count 2); and 493 grammes of a solid containing 342 grammes of cocaine against D2 (Count 3). The alternative counts represented the quantity of cocaine seized from each of them. On 16 March 2021, they pleaded guilty to the alternative count alleged against them. On 9 April 2021, the judge sentenced the applicant to a term of imprisonment of 13 years and 1 month.

2. On 6 May 2021, the applicant applied for leave to appeal against conviction, on the ground that his plea of guilty was null and void because he had been coerced into entering the guilty plea.

3. On 26 April 2022, the applicant was granted an appeal aid certificate to address his sole ground of appeal due to the unusual circumstances in which he pleaded guilty to the count alleged against him. It was directed that he be assigned a new legal team in order to address the nature of the ruling sought by defence counsel, whether the ruling was appropriate and correct in the circumstances, and whether the ruling or anything else inappropriately or unfairly influenced the applicant to abandon the defence of duress and to plead guilty to the offence he faced.

4. Mr Jeremy Cheung was assigned as counsel to represent the applicant. He filed perfected grounds of appeal on 29 June 2022, which can be summarised as follows: the judge procedurally erred in giving an exposition on the legal ingredients of the defence of duress (Ground 1); and the judge’s exposition on duress caused the applicant not to run this defence and to enter a plea of guilty (Ground 2).

5. During the leave hearing, Mr Cheung was asked if an assessment had been made concerning the nature and quality of the evidence to be adduced in support of the defence of duress and whether the applicant had been appropriately advised on the consequences of a successful appeal. Mr Cheung was given time to consult the applicant, after which he informed the court that the applicant had instructed him to withdraw the application, adding that he had already served half his sentence. The applicant confirmed his instructions in open court. The leave application to appeal against conviction was withdrawn, and the applicant’s appeal was dismissed. I indicated I would hand down reasons for judgment to address the submissions of the parties regarding certain issues raised by them that warranted comment. This I now do.

The admitted facts

6. On 30 June 2018, the applicant and D2 were intercepted by customs officers on arrival at Hong Kong International Airport from Columbia via Sao Paulo, Brazil. Suspecting that they had contraband internally concealed in their bodies, they were taken to North Lantau Hospital for examination, where foreign objects were found inside their body cavities.

7. The applicant was arrested and cautioned and, in response, said there was cocaine inside his body, consisting of about 40 items. D2 remained silent when she was arrested and cautioned.

8. They were taken to Queen Elizabeth Hospital, where the applicant discharged 73 pellets, which were subsequently certified to contain the amount of cocaine, the subject of Count 2. D2 discharged 29 pellets, which were subsequently certified to contain the amount of cocaine, the subject of Count 3.

9. In a video recorded interview, the applicant stated, amongst other things, the following:

(i)  he took a flight from Bogota, Columbia to Hong Kong via Sao Paolo, Brazil and Dubai, United Arab Emirates;
(ii)  he owed a Columbian male named Mauricio Arango Ospina the sum of Columbian Pesos $30 million, and to settle the debt, he was told to swallow pellets, containing the drugs on 28 June 2018 and deliver them in Macao;
(iii)  D2 was his girlfriend, who also swallowed pellets of drugs to help settle the debt;
(iv)  the male arranged the flights to Hong Kong and purchased tickets to Macau for both of them;
(v)  he and D2 would be paid a reward of US$5,000 for completing the drug delivery, although he later claimed he did not think he would be paid the money; and
(vi)  he confirmed that he had discharged 73 pellets of drugs.

10. In a written recorded interview on 2 July 2018, D2 stated, amongst other things, the following:

(i)  the applicant was her ex-boyfriend;
(ii)  the applicant was indebted to a Columbian male called Mauricio Arango Ospina, who instructed them to swallow drugs and transport them to Hong Kong;
(iii)  the applicant swallowed over 70 pellets of drugs whilst she had swallowed 29 pellets of drugs in a hotel in Columbia;
(iv)  she confirmed she discharged 29 pellets, which she believed contained cocaine.

11. The estimated street value of the drugs seized was $2,292,095.

12. The applicant and D2 admitted that, at the material time, they had knowingly possessed the drugs for the purpose of unlawful trafficking.

The defence case

13. Mr Cheung submitted that the applicant, prior to pleading guilty, had maintained that he committed the offence under duress, which he conveyed to his legal representatives at the time. He had instructed his legal representatives that the person called Mauricio Arango Ospina was a well-known and extremely violent Columbian criminal who had threatened to hurt him and his family if he did not deliver the drugs.

The application

14. The applicant in his initial ground of appeal, alleged that he was coerced into entering his plea of guilty, suggesting his trial counsel was flagrantly incompetent. He was directed to file an affirmation to set out the full particulars concerning the claims made against trial counsel. In an affirmation dated 11 November 2021, he deposed:

(i)  he was not alleging incompetence against his trial counsel, nor was he prepared to do so because his counsel may have simply misunderstood his instructions or even his case on some of the identified matters of duress;
(ii)  he waived his right to legal professional privilege;
(iii)  he noted that the judge, in her ruling, had identified eight particulars that required some evidence before the defence of duress could be left to the jury and that his counsel should be asked as to his understanding of the applicant’s case regarding the eighth particular;[1]
(iv)  he had only pleaded guilty because the prosecuting counsel “forced” him to do so by conditioning the acceptance of D2’s guilty plea on his guilty plea; and
(v)  he had always intended to contest the charge to which he had a defence.

The judge’s preliminary ruling

15. From the moment of his apprehension, the applicant stated that he owed a large sum of money to a fellow Colombian who threatened to harm him and his family if he did not deliver the drugs. In the pre-trial hearings, the applicant maintained that he would run the defence of duress.

16. At trial, there was a change of counsel and the applicant was represented by Mr Duncan Percy. There was a discussion concerning laying alternative charges against the applicant and his girlfriend for the actual quantity of drugs each had consumed and trafficked. This eventually led to the indictment being amended with a separate count laid against the applicant and his girlfriend in the alternative to the joint count.

17. There was also a protracted discussion with the judge on the law of the duress that took place over many days and resulted in a preliminary ruling from the judge, which may have influenced the applicant not to run this defence and to enter a plea of guilty to the alternative count against him. [2] Mr Percy had submitted to the judge that in advancing the defence of duress, there was an issue emanating from the authorities as to whether the threat had to be imminent. He asked the judge for a ruling as to whether this was an element of the defence, and if it was, he stated he would have to advise the applicant that he could not run the defence and should plead guilty imminent.[3]

18. The judge gave her ruling on 15 March 2021. She explained the nature and purpose of her ruling as follows:

“3. It became clear at the beginning of the trial, and before the jury was empanelled, that there may have been some divergence of understanding as to whether the defence of duress was available on the facts of this case taking into account the prosecution case on the papers, and the proposed defence case, which was outlined to the Court so far as the defence felt able so to do. As a result of the exchange between the Bench and the Bar, Mr Percy on behalf of D1 asked the Court if the defence could have the benefit of a ruling upon the Court’s understanding of the law of duress as it pertains to the case at hand i.e. duress by threats. This was a sensible and pragmatic request, for if the defence were bound to fail for some reason known and accepted at the outset, defence counsel would be in a better position properly to advise their clients, who, after all, are not citizens of a common law jurisdiction and are at a disadvantage as to their understanding of the common law.
4. This ruling does not seek to provide an overview of the whole of the law on duress. Nor is it an indication of the view of the Court on the facts prior to trial. It is made to facilitate an agreed understanding of the law so far as it pertains to the case at hand, so that all counsel can consider whether evidence will be available upon which the defence can be supported sufficient for that defence to go before the jury. It certainly does not seek to make that decision in advance. In providing this summary, the Court has provided counsel with a provisional opportunity to agree certain principles of practice and has heard counsel on a preliminary basis on some of the issues which arise for particular consideration. Neither defence counsel have indicated they are in any way prejudiced by so doing, indeed they seek this clarification in order to be able to properly advise their clients. In the interest of fairness to both the prosecution and defence, this Court is providing a summary of its understanding of the applicable law in respect of duress by threats for that limited purpose and not in any way to indicate that it will not hear counsel on the way forward or to suggest that the Court has already taken any view on the facts of the case.” (Emphasis added)

19. The judge said that the purpose of the ruling was “to facilitate an agreed understanding of the law so far as it pertains to the case at hand, so that counsel can consider whether evidence will be available upon which the defence can be supported sufficiently for that defence to go before the jury.” She added that her ruling did not seek to make that decision in advance nor indicate a view of the court on the facts prior to trial. She later explained that whether the defence may go before the jury was a matter for the consideration of the trial judge after hearing counsel upon the matter. She acknowledged that there was limited scope for a judge to withdraw the defence from the jury, noting at this juncture she was not being asked to do so as she had not heard all of the evidence which was intended to be placed before the jury.[4]

20. It would appear that the judge did what she said she was not going to do, addressing the viability of the defence of duress on her understanding of the facts of the defence case. When addressing the elements of the defence of duress she made the following comments.

21. Of Threats, she said:[5]

“Having heard Mr Percy’s submissions, the court will consider taking the defence case at its highest so that as currently suggested there appears there will be evidence of the threats sufficient to meet this element of the offence.”

22. Of The Objective Test, she said:[6]

“Mr Percy submits that there will be defence evidence as to this. He has indicated he will be calling his client.”

23. Of Causation, she said:[7]

“… on the face of the submissions there is a prima facie case of causation.”

24. Of Immediacy and Continuing Threat, she said:[8]

“As the evidence currently stands there is, at its highest a four-day period from 27 June to 30 June 2018, when the defendants could have availed themselves of the opportunity to avoid the immediate consequences of non-compliance. The facts as they currently stand are as to a future act of retribution upon failure to comply. There is no evidence of any immediate, or almost immediate threat as at the time, in fact, the threat was made or at the time of the beginning of the actus reus when the cocaine was ingested. There is currently no evidence from D2 upon this point and she would stand to be considered quite separately upon this issue as it appears that no threats were made to her directly.”

25. Of Taking Evasive Action, she said:[9]

“Even without the possibility of the threat having been made some one or two weeks before travel, which is in itself problematic, and assuming further sufficient threat or threats were made at the time of the consumption of the drugs and at the time of travel, the defendants travelled through 3 separate jurisdictions outside of Columbia. At each and every stage there may be evidence as to why the defendants did not avail themselves of the opportunity to appeal to the local police or airline authorities or to surrender themselves such that it would appear they had been arrested rather than sought assistance. At present there is no suggestion of such evidence, quite the converse, as D1 had offered to assist within his VRI thereby placing himself (and presumably others it is defence is to be accepted) a clear risk of retribution in any event.”

26. Of Voluntary Participation, she said:[10]

“It appears to be a mainstay of the defence case that they were placed under duress by Ospina, who was a well-known and extremely violent Colombian criminal. Their relationship with Ospina, the nature of the loan and the connection between both D1 and D2 is currently unknown. What is known is that it is part of the defence that they voluntarily had previous dealings with him which placed them, in the event, at the very risk of which they complain. Nothing will turn upon how the dominant party Ospina chooses to exploit that weakness. It is not open to the defendants to say that the debt cannot be connected to the offence because this is their case, or that their relationship in taking a loan could not have led to them foreseeing they would be forced to traffic in drugs because they knew he was a violent criminal who dealt entirely in drugs. This is therefore an element of the defence which is to the benefit of the prosecution and, without more, is problematic for the defence.”

27. The judge concluded her ruling by making the following statement:[11]

“It is entirely a matter for the defendants if they wish to avail themselves of this defence. The approach of the court during trial is not limited to this preliminary ruling, which has been provided upon the application of D1 to provide an outline only of the matters which are required to be considered by the court before the defence may go to the jury. The parties accept other matters may very well come to the fore during the trial, which have not been disclosed to the court and all counsel may have the benefit of other research not currently placed before the court and upon which the court will hear them either now or at the appropriate time.”

28. This ruling was rather unusual as it was more like an advisory opinion from the judge on the law of duress as it may apply to the defence case in order to enable defence counsel to advise their clients on the viability of advancing such a defence at their trial.

29. Having considered the ruling, and after he had had an opportunity to speak to the applicant during the court adjournment, Mr Percy accepted the breakdown of it as a basis for going forward.[12] Indeed, he confirmed that the applicant realised the hurdles he had to overcome and that the applicant was making progress in understanding the matter.[13] The next day, Mr Percy indicated that the applicant would plead guilty.

The consequences of the ruling

30. Even though the judge qualified her ruling by stating that it was a matter for the defendants if they wished to avail themselves of the defence of duress, she nevertheless expressed her opinion on a limited circumference of the facts on the viability of various elements of the defence which she said was problematic for the defendants. Obviously, the judge did not have the applicant’s instructions to his counsel before her, nor the evidence he was to rely on in advancing this defence. Mr Percy was armed with that information, and it may be viewed as unusual that he sought a ruling from the judge that addressed the law and the facts in order to advise his client.

31. The judge in her sentencing remarks, sets out in much greater detail the facts and circumstances of the threats that the applicant claimed he had been subjected to, which led him to commit this offence. The applicant was threatened by the lender of the money that he would be killed, and his family, including his elderly parents and young son, would be harmed if he did not deliver the drugs.

32. For the purpose of this application, the applicant had waived his legal professional privilege and disclosed his instructions to and discussions with his legal representatives at trial. It was apparent that his case was that he had transported the drugs because of threats of violence against him, his girlfriend and his family by a person who was a known criminal and to whom he was indebted. He was queried by his legal team as to why he did not do anything to notify the authorities or avoid the threats made against him. He explained that he was afraid of Ospina, who told him someone else would follow him throughout his journey. He said Ospina also told him they held his nephew and would kill him and harm his mother. From the written instructions, there was extensive discussion about the applicant having committed the offence under threat by Ospina.

33. Mr Percy provided a written response to the allegations made by the applicant in two letters dated 29 June and 30 August 2022. He explained that he was aware of the practice of trial judges being asked occasionally to provide specific preliminary rulings or indications on points of law prior to arraignment. Accordingly, he invited the judge to provide a ruling or indication as to the elements of the defence of duress which she would be directing the jury on when she came to sum up the case to the jury. He said, “I wanted to know whether her proposed directions or more were consistent with my understanding of the law which would guide me on what advice I should give to D1.” The judge indicated that she was willing to provide the relevant information and made a ruling. He said, “Her ruling made it almost impossible for D1’s defence to succeed, and that was the advice I gave him.”

34. It appears he was of the view that the ingredient of remaining in imminent fear of death over a protracted period prior to the applicant’s arrest could not be achieved, and this had a bearing on his advice to the applicant. He said another worrying factor was that the WhatsApp messages and the photographs retrieved from the applicant’s mobile telephone may have possibly undermined his defence. He said none of the messages was threatening, and the photographs were inconsistent, with a couple terrified by death threats being forced to be reluctant couriers to traffic in drugs. It was on this basis that he was of the view that there were clear advantages for the applicant to plead guilty, as in his opinion, there was a very low prospect of a successful defence based on duress. He also felt that the applicant was influenced by his girlfriend’s decision to plead guilty to the charge she faced.

35. When the judge gave her ruling, the trial had not commenced and no evidence was before her on which to base a decision. However, she did not restrict her ruling to the law. She addressed the elements of the defence of duress by referring to the facts of the case as she understood them, primarily relying on the submissions of the parties and the case materials. Throughout her ruling, she refers to “evidence”, but there was no evidence properly before her. Her ruling morphed from directions of law on the defence of duress to an advisory opinion on the applicability of the defence of duress to the circumstances of the case.

36. The question arose whether the judge’s preliminary ruling inadvertently put undue pressure on the applicant to abandon a defence he wished to advance. There was also the issue of whether the judge was correct in the opinions she expressed based on the particular facts and circumstances that she seemed to take into account when dealing with the elements of immediacy and continuing threat, the taking of evasive action and the voluntary participation in the offence. However, that has all become academic because the applicant has withdrawn his appeal.

37. Whilst I have no doubt that the intentions of all concerned were to address an issue that would have a significant bearing on the case, it involved the judge giving a formal ruling on the applicant’s defence as opposed to having a discussion with counsel as to issues of law and factual matters that normally takes place in the conduct of the trial. Instead of being a ruling on the law on which defence counsel could then discuss with his client, armed with full and complete instructions, it was an opinion by the judge on the viability of the applicant’s defence based on a limited understanding of the facts, rather than on evidence properly adduced either in a voir dire or at trial.

38. A criminal trial is conducted on the basis that the parties determine the evidence to be placed before the jury and identify the issues that the jury needs to consider. The jury is to decide facts and issues arising from the evidence and ultimately determine whether the defendant is guilty or not guilty of the crime or crimes charged. The verdict must be based on the evidence produced by the parties and in accordance with the law as explained by the judge. A judge ensures that the case is conducted fairly in accordance with relevant law and practice, and that all parties involved are given the opportunity for their case to be presented and considered. The judge may be required to make decisions on questions of law throughout the trial including whether evidence sought to be led by a party is relevant and admissible. The judge does not determine any facts, resolve any issues raised by the evidence or decide the verdict.[14] The ultimate objective of the judge is to ensure that a defendant has a fair trial.

39. This case highlights the different roles and functions of those involved in a criminal trial. The role and responsibilities of a judge and counsel are clearly defined and, while a particular result may seem just and appropriate, it should be arrived at according to the relevant law and procedure under our criminal justice system. The judge was right to respond to counsel’s application on the court’s directions on the defence of duress but should have taken more care not to express a view by way of a formal ruling on the viability of the defence of duress in the present circumstances.

	(Kevin Zervos)
	Justice of Appeal

Ms Audrey Parwani, SPP of Department of Justice, for the respondent

Mr Jeremy Cheung, instructed by Simon Si & Co, assigned by the Director for Legal Aid, for the applicant

[1] This was incorrectly numbered (vii) in the judge’s ruling. It read, “the defendant did not voluntarily surrendered his will to the domination of another, i.e. lay himself open to the risk of being placed in this position”.

[2] It should be noted that a new Specimen Direction on Duress was issued in the 2020 revision in Chapter 107. The 2020 revision was issued in November 2020 and an amendment issued in February 2022.

[3] Appeal Bundle (AB), 318B-319F and 326G-327T.

[4] AB, 68 and 69, Preliminary Ruling, at [16] and [17].

[5] Ibid., at [18].

[6] Ibid., at [19].

[7] Ibid., at [20].

[8] Ibid., at [21].

[9] Ibid., at [23].

[10] Ibid., at [25].

[11] Ibid., at [26].

[12] AB, 46D.

[13] AB, 47C-G.

[14] Hong Kong Judicial Institute, 2013, Specimen Direction 1 – General Functions of Judge and Jury; New South Wales, Criminal Trial Courts Bench Book – Trial Procedure, [1-480].

CACC 98/2021

[2022] HKCA 603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2021

(ON APPEAL FROM HCCC NO 301 OF 2019)

_______________

	HKSAR	Respondent
	v
	Quintero Bernal Diego-Jhovanny	Applicant

_______________

Before: Hon Zervos JA in Court

Date of Hearing: 26 April 2022

Date of Decision: 26 April 2022

________________

D E C I SI O N

________________

1. The applicant pleaded guilty to trafficking in a dangerous drug and now applies for leave to appeal his conviction in order to reverse his plea.

2. The applicant and his girlfriend, both Colombian nationals, had smuggled into Hong Kong a large quantity of cocaine which was contained in pellets that they had consumed. From the moment of his apprehension, the applicant stated that he owed a large sum of money to a fellow Colombian who threatened to harm him and his family if he did not deliver the drugs.

3. The applicant and his girlfriend were jointly charged with trafficking of a dangerous drug and their trial was fixed to take place before Campbell-Moffat J and a jury. In the pre-trial hearings, the applicant maintained that he would run the defence of duress.

4. At trial, there was a change of counsel and the applicant was represented by Mr Duncan Percy. There was a discussion concerning the laying of alternative charges against the applicant and his girlfriend for the actual quantity of drugs that each had consumed and trafficked. This eventually led to the indictment being amended with two counts laid separately against the applicant and his girlfriend in the alternative to the joint count.

5. There was also a protracted discussion with the judge on the law of the duress that took place over many days and resulted in a preliminary ruling from the judge which may have influenced the applicant not to run this defence and to enter a plea of guilty to the alternative count against him. Mr Percy had submitted to the judge that in advancing the defence of duress there was an issue emanating from the authorities as to whether the threat had to be imminent. He asked the judge for a ruling as to whether this was an element of the defence, and if it was, he stated he would have to advise the applicant that he could not run the defence and should plead guilty. [1]

6. The judge gave her ruling on 15 March 2021. She explained that the purpose of it was “to facilitate an agreed understanding of the law so far as it pertains to the case at hand, so that counsel can consider whether evidence will be available upon which the defence can be supported sufficient for that defence to go before the jury.” She added that her ruling did not seek to make that decision in advance, nor indicate a view of the court on the facts prior to trial. Even though the judge qualified her ruling by stating that it was a matter for the defendants if they wished to avail themselves of the defence of duress, she nevertheless expressed her opinion on a limited circumference of the facts as to the viability of various elements of the defence which she said was problematic for the defendants. It would appear that the judge did not have before her the applicant’s instructions to his counsel, nor the evidence on which he was to rely in advancing this defence. Mr Percy was armed with that information and it is therefore unusual that he sought a ruling from the judge that addressed the law and the facts in order to advise his client.

7. I note that the judge in her sentencing remarks sets out in much greater detail the facts and circumstances of the threats that the applicant claimed he had been subjected to which led him to commit this offence. The applicant was threatened by the lender of the money that he would be killed, and his family, including his elderly parents and young son, would be harmed, if he did not deliver the drugs.

8. The question arises as to whether the judge’s preliminary ruling inadvertently put undue pressure on the applicant to abandon a defence that he wished to advance. There is also the issue as to whether the judge was correct in the opinions she expressed based on the particular facts and circumstances that she seemed to take into account when dealing with the elements of immediacy and continuing threat, the taking of evasive action and the voluntary participation in the offence.

9. In light of the unusual circumstances that have occurred at the applicant’s trial in addressing the question of the defence of duress, I will grant him an appeal aid certificate, which should be assigned to a new legal team. The matters that need to be addressed are the nature of the ruling sought by defence counsel (although the defence of duress had only recently been addressed in the new Specimen Directions); whether the ruling was appropriate and correct in the circumstances; and whether the ruling or anything else inappropriately or unfairly influenced the applicant to abandon the defence of duress and to plead guilty to the offence he faced.

	(Kevin Zervos)
	Justice of Appeal

Ms Audrey Parwani, SPP, of the Department of Justice, for the respondent

The applicant appears in person

[1] It should be noted that a new Specimen Direction on Duress was issued in the 2020 revision in Chapter 107. The 2020 revision was issued in November 2020 and an amendment issued in February 2022.

HKSAR v. QUINTERO BERNAL DIEGO-JHOVANNY

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