HKSAR v. Paredes Grandez Gledys Malvi

CACC 346 /2019

[2020] HKCA 576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 346 OF 2019

(ON APPEAL FROM HCCC NO 249 OF 2019)

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Before: Hon Macrae VP in Court

Date of Hearing: 15 July 2020

Date of Judgment: 15 July 2020

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J U D G M E N T

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1.The applicant applies for leave to appeal against a sentence of 13 years and 9 months’ imprisonment imposed on her by Deputy Judge Chan (the judge) in the High Court on 2 December 2019, following the confirmation of her guilty plea to a single count of trafficking in a dangerous drug, namely, 1.14 kilogrammes of a liquid containing 624 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, which had been first entered in the magistrate’s court upon committal.

The facts

2.On 20 October 2018 at about 1:50 pm, the applicant, a Peruvian woman aged 38, together with the 2^nd defendant (D2), arrived at Hong Kong International Airport (the airport) on board an Ethiopian airlines flight from Addis Ababa in Ethiopia.  Their journey had started in Lima in Peru and their itineraries had been the same; indeed, they had both sat in the same row of the aircraft on their connecting flight from Ethiopia.  Some two hours later, they were intercepted at the customs arrival hall of the airport.  At the time of their interception, the applicant and D2 each possessed US$1,000, a small quantity of Peruvian currency and one mobile telephone with a SIM card.  They both held a hotel booking under the applicant’s name.

3.After an initial body search, the applicant and D2 were escorted to the Accident and Emergency Department of North Lantau Hospital for examination, which confirmed that there were foreign objects inside their bodies.  The applicant was subsequently transferred to Queen Elizabeth Hospital, where she discharged 38 packets of cocaine wrapped in plastic, which formed the subject matter of the count against the applicant.  The cocaine in the applicant’s possession had an estimated street value of HK$1,277,940.

4.As part of the Summary of Facts admitted by the applicant, D2 had explained in a subsequent cautioned interview that she had been given the packets to swallow in Lima by a Peruvian male, in order to bring them to Hong Kong for a reward of US$4,000.  Although the applicant said nothing in her own interview, she admitted and accepted that she possessed the packets of cocaine for the purpose of unlawful trafficking.

Mitigation

5.In mitigation, it was submitted that the applicant was a divorced woman with a 12-year-old son and elderly parents, and the sole provider for her family.  She had participated in Father Wotherspoon’s anti-drug ‘campaign’ and produced a letter from him to show that her story had been published on line.

Reasons of sentence

6.The judge referred to the sentencing guidelines set out in R v Lau Tak Ming & Anor^[1] and HKSAR v Abdallah^[2].  Under the guidelines, trafficking in 400 to 600 grammes of cocaine would normally attract a starting point of 15 to 20 years’ imprisonment.  Although the applicant was in possession of 624 grammes of cocaine narcotic, the judge adopted an initial starting point of 20 years’ imprisonment, which he enhanced by 1 year for the international element involved in bringing a large consignment of dangerous drugs across the border into Hong Kong, in accordance with the guidelines in HKSAR v Chung Ping Kun^[3]. 

7.Having given the applicant a full one-third discount for her plea of guilty at the earliest available opportunity, thus reducing the sentence to 14 years’ imprisonment, the judge gave the applicant a further reduction of 3 months for her participation in Father Wotherspoon’s ‘campaign’, bringing the resulting sentence to 13 years and 9 months’ imprisonment.

Grounds of appeal

8.The applicant, in her home-made submissions dated 14 January 2020, complains, firstly, that the judge failed to give any consideration to her personal circumstances; in particular, her clear record, her family situation and her ignorance of the risks involved in carrying dangerous drugs for other people.  She argues, secondly, that it was a breach of natural justice for the judge to have ignored or given minimal weight to her personal circumstances.

Respondent’s submissions

9.In reply, Ms Claudia Ng, on behalf of the respondent, submits that the applicant’s circumstances were not so exceptional, and the judge could not be faulted for not granting the applicant any discount for her personal circumstances.  The general hardship that would inevitably be caused to a defendant’s immediate family was something that person should have considered before committing the offence, and not after.  Neither the applicant’s clear record nor her ignorance of the risk of trafficking in dangerous drugs justified a discount of more than the customary one-third for plea. 

10.Since the starting point, the discount and the further discount of 3 months were all within the appropriate ranges provided by authority, the overall sentence could in no way be said to be wrong in principle or manifestly excessive.

Consideration

11.The starting point, enhancement of sentence and discount were, as Ms Ng suggests, entirely within the relevant sentencing guidelines for the quantity of cocaine being trafficked by the applicant across three continents to Hong Kong.  The further discount of 3 months for writing a letter (or letters) for publication to assist Father Wotherspoon’s campaign was perhaps generous but within the judge’s discretion. 

12.It has been said by the courts time and time again that personal circumstances cannot, unless they are exceptional, affect sentence for such a serious crime as international drug trafficking.  There is nothing exceptional, or even unusual, about the personal circumstances presented by the applicant in this case.  The applicant must have realised what she was doing when she was asked to swallow 38 packets and carry them across the world to a country she had never visited before, and she would have well known the consequences of her actions both for herself and her family if she was caught.  For a 39-year-old mother of a 12-year-old child, who had been educated to secondary school level in Peru, it defies belief that she would not have realised the consequences of her actions, or appreciated the death and destruction she would be causing by her conduct to the lives and families of others in this region.

Conclusion

13.There are no reasonably arguable grounds of appeal against sentence and leave to appeal must be refused.  I advise the applicant that she has the right to renew her application for leave to appeal to the Court of Appeal but she should also be warned that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

Ms Claudia Ng SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] R v Lau Tak Ming & Anor [1990] 2 HKLR 237.

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

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