HKSAR v. Osinaga Banegas Maria Isabel

CACC 280/2021

[2022] HKCA 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 280 OF 2021

(ON APPEAL FROM HCCC NO 219 OF 2017)

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J U D G M E N T

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1.On 9 October 2017, the applicant was sentenced to 16 years and 10 months’ imprisonment following her plea of guilty to one count of trafficking in a dangerous drug[1], namely 4,271.4 grammes of a solid containing 2,320.2 grammes of cocaine, before Zervos J (“the judge”) (as Zervos JA then was), and now she applies for leave to appeal against the sentence by way of a Form XI notice dated 2 December 2021, together with an affirmation in support. As will be apparent, the application was made more than 4 years out of time.

2.The applicant acts in person at this hearing. She has explained in her affirmation that she made this application after realising, some 4 years into her sentence, that “there are cases similar to mine but with less years of sentence”. As for the length of time she took to lodge her appeal, she did not appreciate that there were such time limits.

The summary of facts

3.On 15 September 2016, the applicant, a 24-year-old Bolivian national, arrived at Hong Kong International Airport with the dangerous drugs in question concealed in her suitcase. The retail value of the drugs was some HK$4.7 million. The applicant initially denied knowledge of the presence of cocaine in her suitcase. In a subsequent video recorded interview, she claimed that she was on a business trip, and it was an Argentinian friend who had made the various bookings for her journey and accompanied her to buy the suitcase concerned in a Bolivian market. However, by pleading guilty, the applicant admitted that she was unlawfully trafficking in the cocaine concerned.

4.Customs officers also found in her possession US$900 in cash, as well as some Bolivian and Brazilian currencies.

Mitigation

5.The applicant provides for her 5-year-old daughter, her parents and her younger brothers by operating a wedding planning business. She has no criminal record in either Hong Kong or Bolivia. In a mitigation letter to the court, she explained that she had taken the suitcase to Hong Kong in order to settle her debts; and she was deeply remorseful.

6.The applicant’s counsel at her sentence urged the court to take into account the following matters:

(a)  the applicant had evidently not been paid to traffic the drugs in question, given the relatively small amount of money found in her possession upon arrest;

(b)  the applicant was enticed into carrying the suitcase because of an outstanding debt, and may have been set up and induced to take out a loan so as to oblige her to agree to traffic the drugs;

(c)  the applicant had attempted to provide assistance to Customs officers by informing them of the arrangement by which the suitcase would be taken to a guest house in Tsim Sha Tsui and collected, yet no controlled delivery was arranged; and

(d)  the applicant had participated in Father Wotherspoon’s anti-drugs campaign.

Reasons for sentence

7.The judge found no substance in the submission that the applicant did not receive a reward for her drug trafficking activity. Her reasons for committing the crime counted little against the enormity of the offence, which involved a very large quantity of cocaine.

8.The judge referred to HKSAR v Daresa Mariam Guma[2], which noted that drug couriers were often from impoverished backgrounds in underdeveloped countries; however, the courts could not be swayed by their plight. The judge adopted a starting point of 24 years’ imprisonment in respect of 2,320.2 grammes of cocaine narcotic by rounding the arithmetic calculation down from the relevant band[3]. Arithmetically, the starting point should have been 24 years and 2 months’ imprisonment. He then enhanced the sentence of 24 years’ imprisonment by 2 years for the aggravating factor of the international element in bringing dangerous drugs across the border into Hong Kong[4].

9.Having read the affidavit of Father Wotherspoon, which asserted that the applicant had engaged her family members to publicise the catastrophic consequences of getting involved in smuggling dangerous drugs, the judge was satisfied that the applicant’s efforts were genuine and extensive, and that she had made a positive and major contribution to Father Wotherspoon’s campaign. Accordingly, the judge gave the applicant a reduction of 9 months for this factor. He therefore reduced the resulting starting point to 25 years and 3 months’ imprisonment.

10.The judge then gave the applicant a full one-third discount from this starting point for her plea of guilty before a magistrate and sentenced her to 16 years and 10 months’ imprisonment.

Respondent’s submissions

11.Ms Jojo Lam, on behalf of the respondent, submitted that the applicant had failed to provide any reasonable explanation for her delay in applying for leave to appeal against sentence; and had further failed to put forward any substantive or substantial ground of appeal against sentence.

12.She referred to R v Wong Kai Kong & Another[5]for the relevant considerations for the Court in dealing with applications for leave to appeal out of time. Furthermore, the applicant, whilst contending that there were cases similar to hers but with lower sentences, had not provided any details of these cases. The starting point for sentence and the enhancement were both unimpeachable.

13.As for the applicant’s participation in Father Wotherspoon’s campaign, Ms Lam referred to appellate authority, admittedly decided since the applicant’s sentence, such as HKSAR v Kilima Abubakar Abbas[6]and HKSAR v Herry Jane Yusuph[7], where the Court had clearly stipulated that this factor could now only attract a “token” discount of no more than 3 months. A discount of 9 months for this factor could hardly be said to be a token discount.

Consideration

14.This application is more than 4 years out of time. That would normally be enough to dispose of the matter. Nevertheless, I have looked at the merits of her application to ensure that I am not shutting out a meritorious ground of appeal. I have been unable to find any reasonably arguable ground of appeal against sentence.

15.The enhanced starting point for sentence was in accordance with authority, while the discount for assisting Father Wotherspoon’s campaign was one which, in the light of subsequent settled authority, would never now be considered. Moreover, such discount for this factor, if it is considered at all, is to be utilised as mitigation in order to reduce the eventual sentence, not the starting point. To that extent, the applicant was fortunate in the time and manner in which the sentence was passed.

16.In respect of the applicant’s personal circumstances, they cannot amount to any significant mitigation for such a grave offence. As for the applicant’s assertion that other more lenient sentences have been passed on similar quantities of dangerous drugs, the Court of Appeal has repeatedly said that the fact that another sentence passed on different facts, on a different occasion, by a different judge does not justify the reduction of an otherwise proper sentence passed in accordance with the guidelines.

17.I must accordingly refuse the application for leave to appeal out of time and take the opportunity to advise the applicant that, although she has the right to renew her application to the Court of Appeal, that Court also has the power to order the loss of any time which the applicant has spent in custody pending her appeal if it were to conclude that there was no justification for renewing her application for leave.

Ms Jojo Lam PP, of the Department of Justice, for the Respondent

The Applicant appeared in person