HKSAR v. Gomes Da Costa Fabricia

CACC 185/2020

[2021] HKCA 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 185 OF 2020

(ON APPEAL FROM HCCC NO 50 OF 2020)

_______________

_______________

Before:  Hon Zervos JA in Court

Date of Hearing: 5 November 2021

Date of Judgment:  5 November 2021

________________

J U D G M E N T

________________

1.The applicant seeks leave to appeal against her sentence of 8 years and 3 months’ imprisonment following her conviction on her own plea of trafficking in a dangerous drug.

2.The applicant arrived in Hong Kong from Sao Paulo, Brazil via Addis Ababa, Ethiopia on 26 December 2018 and was found to have concealed in her luggage a total of 317.8 grammes of a solid containing 260 grammes of cocaine.  The evidence revealed the applicant was recruited as a drug courier and knowingly participated in smuggling the drugs from Brazil into Hong Kong. 

3.From what the applicant stated in her cautioned interview and what she had recorded in her mobile phone, she was involved in arranging the transportation of the drugs from Brazil to Hong Kong.  She dealt with a person in Hong Kong in making the necessary arrangements. 

4.The judge adopted a starting point of 12 years and 10 months’ imprisonment in accordance with the sentencing guidelines,[1] which he enhanced by 6 months for the international element.[2] The judge reduced the notional starting point of 13 years and 4 months’ imprisonment by one third for the applicant’s guilty plea, a further 3 months for the applicant’s participation in Father John Wotherspoon’s campaign,[3] and a further 4 months for information she gave to the authorities.[4]  This resulted in a sentence of 8 years and 3 months’ imprisonment. 

5.The applicant did not raise any specific grounds of appeal in her notice of application for leave to appeal against sentence.  At the leave hearing, she complains that her sentence was excessive when compared with another case.  She also complains she did not receive an appropriate discount for the information she provided the authorities.

6.The judge adopted the correct starting point and enhanced the sentence for the international element consistent with relevant sentencing guidelines.  He gave appropriate discounts for the applicant’s guilty plea and her assistance to the authorities.  Notwithstanding, counsel for the applicant acknowledged the information she gave the authorities “has borne no fruit”,[5] she still received a 4 month discount to her sentence.  

7.From an overall review of the sentence imposed on the applicant, the judge made no apparent error and it cannot be said the sentence was manifestly excessive.  The application for leave to appeal against sentence is therefore refused. 

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

Ms Winnie Ho, SADPP, of the Department of Justice, for the respondent

The applicant appears in person

[1]  Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69; and R v Lau Tak-ming [1990] 2 HKLR 370.

[2]  HKSAR v Chung Ping Kun [2014] 6 HKC 106, at [9].

[3]  HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.

[4]  Z v HKSAR (2007) 10 HKCFAR 183, at [10]-[13].

[5]  Appeal Bundle, 15Q.