HKSAR v. Perez Peraza Zuleyma Coromoto

CACC 162/2018

[2019] HKCA 352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 162 OF 2018

(ON APPEAL FROM HCCC NO 228 OF 2017)

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Before: Hon Macrae VP and Pang JA in Court

Date of Hearing: 22 March 2019

Date of Judgment: 22 March 2019

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.The applicant was charged with trafficking in a dangerous drug, namely 972 grammes of a solid containing 799 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (the “Charge”). On 1 November 2017, she was convicted on her own plea before Deputy Judge Chan (the “Judge”) in the High Court and, on 3 November 2017, sentenced to 14 years and 2 months’ imprisonment.

2.On 15 June 2018, the applicant filed a Notice of application for leave to appeal (by way of Form XI) and now seeks leave to appeal against her sentence out of time.

Facts

3.The applicant arrived in Hong Kong from São Paulo, Brazil via Abu Dhabi in the United Arab Emirates in the morning of 5 October 2016.  At about 10:25 am on the same day, she was intercepted by Customs Officers at the transit lounge of Hong Kong International Airport for customs clearance whilst in transit to Macau by ferry.

4.Nothing irregular was found in her belongings. However, suspecting that she had internally concealed dangerous drugs in her body, she was escorted to North Lantau Hospital for medical examination.  Upon an X‑ray scan of the applicant, it was confirmed that there were foreign objects in her body.  The applicant was thereupon arrested but remained silent under caution.

5.She was subsequently transferred to Queen Mary Hospital for further medical examination, where in due course she discharged a total of 100 pellets of suspected dangerous drugs.  The pellets were later confirmed to contain a total of 972 grammes of a solid containing 799 grammes of cocaine.

6.On 6 October 2016, a record of interview was conducted with the applicant in the presence of a Spanish interpreter.  Under caution, the applicant admitted, inter alia, that:

(i)  A friend by the name of Marvin had engaged her to carry the drugs in question and, for that purpose, had provided her with air tickets, US$1,000 and a hotel booking for the trip;

(ii)  An unknown woman in Brazil had given her the 100 pellets of drugs;

(iii)  She was instructed not to stay in Hong Kong but to go directly to Macau, where someone would contact her.  She had no means of contacting that person herself;

(iv)  She only knew that the pellets were drugs, but did not know what kind of drugs they were.

7.The cocaine carried by the applicant had an estimated retail value of HK$1,101,276 at the time of seizure.

Mitigation

8.The applicant is a Venezuelan national from a poor family of ten children.  She is married with three children, who were between 3 and 7 years of age at the time of sentence.  Although unknown to her at the time of arrest, she was in the sixth week of pregnancy.  She miscarried in October 2016.

9.One of her brothers is a schizophrenic with suicidal tendencies, for whom the applicant was said to care and pay his medical expenses.  Three letters of mitigation were adduced during mitigation from her husband, from Father John Wotherspoon, detailing the applicant’s assistance for his so‑called “campaign”, and from the applicant herself.  In respect of her contribution to Father Wotherspoon’s “campaign”, her counsel suggested that she might receive a discount on her sentence of 6 to 8 months’ imprisonment.

Reasons for sentence

10.Applying the sentencing guidelines in HKSAR v Abdallah[1], the judge adopted a starting point in respect of 799 grammes of cocaine narcotic of 21 years’ imprisonment.  Since the drugs concerned had been brought across the border into Hong Kong, the judge enhanced the starting point by 18 months’ imprisonment, in accordance with the guidelines suggested in HKSAR v Chung Ping Kun[2]. From a notional sentence after trial of 22½ years’ imprisonment, the judge accorded the applicant a one third discount for her timely plea, reducing the sentence to 15 years’ imprisonment.

11.The judge then turned to consider the applicant’s involvement with Father Wotherspoon’s “campaign”.  Regarding her participation as evidence of remorse, and treating her as a person of positive good character, he granted her a further discount of 10 months’ imprisonment, thus reducing the ultimate sentence to 14 years and 2 months’ imprisonment.

Grounds of appeal

12.In her grounds of appeal dated 15 June 2018, the applicant complained that the starting point was excessive, and that she needed to take care of her brother, her mother being already of an advanced age.  As for the lateness of filing a notice of her intention to appeal, she has given no reasons to explain why her application for leave to appeal should have been more than 6 months out of time.  All she has said is that the political situation in Venezuela has been chaotic for her family and she has been worried about it.

Consideration

13.No valid reason has been given as to why this application for leave should have been made so long out of time.  As Ms Chit for the respondent points out, neither the starting point for the quantity of cocaine concerned, nor the enhancement for the international element can be criticised: both were in accordance with the relevant sentencing guidelines laid down by this Court.

14.In respect of the applicant’s impoverished background, it has been repeatedly stated by this Court that personal circumstances are of little or no consequence with offences of international drug trafficking, which are crimes of the utmost gravity.  As a different composition of this Court in HKSAR v Rwakibale Aheebwa Peter[3] has recently stated, at paragraph 17:

“In HKSAR v Daresa Mariam Guma[4] …, McWalters JA explained that it is a notorious fact that persons from an impoverished background in underdeveloped countries are frequently employed by drug traffickers as drug couriers and drug mules to transport drugs from one country to another and, regrettably, the persons most readily tempted by this kind of crime are persons who come from desperate circumstances and so are more likely to be willing to assume the risks attendant upon international drug trafficking. He went on to emphasize that it is for this very reason that the courts will not be swayed by the plight of the trafficker.”

15.Furthermore, we do not accept that someone who is prepared to swallow 100 pellets of cocaine for reward and carry them in her body across the world to a country she has never been to before does not know the seriousness of what she is doing, or the dire consequences if she is caught.

16.The proper approach to involvement in Father Wotherspoon’s “campaign” has now been settled by the decision of this Court in HKSAR v Kilima Abubakar Abbas[5].  A reduction for this factor is not automatic, nor is there a “usual” discount.  A judge, in the exercise of his absolute discretion, may or may not give any discount for this factor at all.  If he does, it must be a “token” discount of no more than 3 months.  Had the decision in Kilima Abubakar Abbas been published before sentence was passed in the present case, the judge would not have regarded the applicant’s assistance for this factor as either the product of remorse or as positive good character.  Nor, with respect, would he have given an astonishing 10 months’ reduction from the sentence for this factor, which was way beyond that which even defence counsel was advocating.

17.Having looked at Father Wotherspoon’s letter to the court on the applicant’s behalf, including a letter written by an unidentified Venezuelan female (presumably the applicant) which had been placed on his website, we might have understood a discount of one month for the applicant’s contribution to his “campaign”.  As it was, the applicant was the beneficiary of a very large discount, the extent of which was not only extremely generous but also without any proper justification at all. Ultimately, the applicant received an effective overall discount of 37% from a correct notional sentence after trial of 22½ years’ imprisonment.  With respect, such a discount seriously undermines this Court’s repeated emphasis on consistency in the sentencing of cases of international drug trafficking and will only lead to other applicants complaining that they did not get a like discount for assisting in Father Wotherspoon’s “campaign”.  We wish, therefore, to make clear, in the wake of this Court’s decision in Kilima Abubakar Abbas, that any discount for this factor, if it is considered appropriate to give one at all in a particular case, must be a token one.

18.Given our view that the sentence passed upon the applicant was some 9 months shorter than it should have been on a correct application of the mitigation to the otherwise appropriate sentence after trial, there is no merit whatsoever in her application for leave to appeal out of time, which is refused.

19.The appeal is accordingly dismissed.

Ms Noelle A Chit PP, of the Department of Justice, for the Respondent

The Applicant appeared in person