HKSAR v. Lecarnaque Saavedra Zoila Elizabeth

CACC 430/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 430 OF 2014

(ON APPEAL FROM HCCC NO. 197 OF 2014)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

Introduction

1.On 14 July 2014, the applicant was convicted upon her guilty plea before Deputy High Court Judge Stuart-Moore of one count of trafficking in a dangerous drug, namely, 1.08 kilogrammes of a liquid containing 0.52 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 25 November 2014, she was sentenced to 12 years and 8 months’ imprisonment. 

2.On 12 December 2014, the applicant filed a notice of application seeking leave to appeal against her sentence. 

3.At the hearing on 18 May 2016, we granted leave to appeal against the sentence, allowed the appeal and reduced the sentence to 12 years and 5 months.  Our reasons appear below. 

The Facts

4.The applicant is a foreign national.  The facts admitted by the applicant reveal that on 27 October 2013, the applicant arrived at the Hong Kong International airport on a flight from Lima via Paris.  She was intercepted at the Customs Arrival Hall.  Upon a search of the luggage that she was carrying, a total of 54 packets of liquid cocaine that contained the drug in question were found concealed inside the lining of two jackets placed inside the luggage.  Under caution, the applicant remained silent. 

5.The market retail value of the drug in question was estimated at HK$1,057,320.

6.On 9 May 2014, the applicant pleaded guilty before a magistrate and was committed to the Court of First Instance for plea and sentence.

Reasons for sentence

7.In passing sentence, the Judge referred to the sentencing guidelines established in R v Lau Tak Ming [1990] 2 HKLR 370 which have been applied to trafficking in cocaine in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342.  Having regard to the narcotic content of the drug in this case, namely, 520 grammes of cocaine, the Judge adopted a starting point of 18 years and 4 months’ imprisonment.

8.The judge then enhanced the starting point by 8 months to 19 years’ imprisonment on account of the international element. Giving the applicant the full one‑third discount for her timely guilty plea, the Judge passed a sentence of 12 years and 8 months’ imprisonment on the applicant.

Grounds of appeal

9.In her several letters to the court[1] and in her oral submissions at the hearings before us, the applicant stated that she is a single mother who used to be the sole financier of her children and aged mother.  She also mentioned how, because of her need for money to finance an eye operation, she had been used by others to bring the drug into Hong Kong, and that she deeply regretted it.  She apologised for her offence and asked for leniency on account of her poor health and family situation, the hardship she endures as a foreign national who does not speak Cantonese or English serving prison term in Hong Kong as well as her remorse and cooperation.   

Discussions

10.Following the guidelines in R v. Lau Tak Ming, which are applicable to trafficking in cocaine (see Attorney General v. Pedro Nel Rojas), trafficking in 400 to 600 grammes of cocaine will attract a starting point of 15 to 20 years of imprisonment.  The quantity of cocaine that the applicant was found to be trafficking is 520 grammes.  Strictly applying the guidelines established in the above authorities, this will attract a starting point of 18 years’ imprisonment.  The starting point of 18 years and 4 months adopted by the Judge is, with respect, too high.  The Judge’s reasons for sentence did not point to any special circumstances for the adoption of a higher starting point.  

11.The Judge was correct to enhance the starting point to reflect the international element in this case, namely the applicant was carrying the drug into Hong Kong from another jurisdiction: see HKSAR v. Abdallah Anwar Abbas [2009] 2 HKC 197, at §42. We see no reason to disturb the eight months’ enhancement that the Judge had adopted.

12.The Judge had given full credit for the applicant’s timely plea of guilty by affording her the usual one-third discount.

13.Other than the applicant’s remorse as reflected in her timely guilty plea, we do not see any other grounds on which the sentence may be reduced.

14.Regarding the applicant’s poor health, the medical officer of Lo Wu Correctional Institution, where the applicant is being held, had at the Court’s request provided a medical report on the applicant.  It confirms that the applicant is a diabetic, and that she has complaints of blurred vision, pain in her calf muscle, a lump over her back and also abdominal pain.  For her medical problems, arrangements have been made for the applicant to receive medical care and treatment inside the institution as well as from hospitals outside.

15.It is well established that medical ground is not normally a ground for reducing sentence: Yip Kai Foon v. HKSAR (2000) 3 HKCFAR 31, at 35F-H.  The medical condition of an offender is not a matter to which the court would have regard for mitigation of a proper sentence, though it might well be a matter for the Executive if brought to their attention and deserving of consideration: R v. Ho Mei Lin [1996] 4 HKC 491, at 493I-494A.  As explained in HKSAR v. Bayanmunkh [2012] 2 HKC 233, 238 at §§10 & 11, there are very sound policy reasons why the Courts have adopted such an approach to sentencing.  In drug trafficking cases, the Courts could not appear to allow ill-health to shield an offender from the consequences of his conduct; there is the risk that drug traffickers would target and exploit this group of people if it was known that they would be treated more leniently.   

16.Likewise, the financial circumstances of, and the hardship to, the applicant and her family are not matters that will provide mitigation for the offence of trafficking in dangerous drug because of the seriousness of the offence and the effects it has on others and society as a whole: see HKSAR v. Olivier Frouke Elizabeth CACC 214/2012 (unreported) at §8.

17.The fact that the applicant is not a previous offender and the hardship she endures in serving a prison term in Hong Kong as a foreign national also do not afford proper ground for a reduction in sentence in respect of the offence of trafficking in dangerous drug: HKSAR v. Hong Chang Chi [2002] 1 HKC 295, at 300A-D. While we acknowledge that the applicant is in prison far from her family and native place, and she might find the imprisonment more difficult because of language barrier, the hardship has to viewed against the fact that she had made the decision to come to Hong Kong to commit very serious criminal offence, 

18.On the basis of a starting point of 18 years, enhanced by 8 months on account of the international element, and adopting a one-third discount for the guilty plea, the proper sentence should be 12 years and 5 months’ imprisonment. 

Conclusion

19.For the above reasons, we had allowed the application for leave to appeal against sentence. We had further allowed the appeal and reduced the sentence to one of 12 years and 5 months. 

Ms Denise Chan, Assistant Director of Public Prosecutions (Ag.), of the Department of Justice for the respondent.

The applicant, unrepresented, appeared in person. 

[1] The letters were received in March, June and August 2015 and April 2016.