The Quee v. Roberto Eduardo Baptists and Another

CACC000362/1990

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Coram: Hon. Yang, C.J., Fuad, V.-P. and Ryan, J. in Court

Date of hearing: 25 June 1991

Date of delivery of judgment: 25 June 1991

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JUDGMENT

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Ryan, J.

1. The appellants were each convicted after pleas of guilty to a charge of possession of a dangerous drug for the purpose of unlawful trafficking the quantity being 43.5K of a mixture containing salts of esters of morphine and in respect of the charge of conspiracy to trafficking in dangerous drug, namely salts of esters of morphine. The 1st applicant was sentenced to 11 1/2 years' on each charge to be served concurrently and the 2nd applicant was sentenced to 10 years' imprisonment on each charge also to be served concurrently. They now apply for leave to appeal against these sentences.

2. The 1st applicant was involved in the conspiracy to the extent that he purchased a yacht in the Philippines which was sailed to Hong Kong and was there loaded with the drugs, the subject of the first charge. He was joined in Hong Kong on the boat by the 2nd applicant and they were both on board the yacht when it was intercepted on its way to Australia for the purpose of delivering the consignment.

3. The 2nd applicant, prior to the conspiracy, seems to have been acting as a go-between delivering money and phone numbers from the financier to the 1st applicant.

4. After their arrest, it is common ground that both applicants gave valuable information to the police, that they remained in police custody for a period of time during which they went to Australia and took part in a hazardous delivery which enabled the authorities there to make arrests of other people involved in the conspiracy and that back in Hong Kong they remained for a further period in police custody and gave further evidence which was of assistance to the police and finally that they made themselves available to give evidence in the Hong Kong Courts. In respect of one of the other conspirators they did give such evidence and a conviction resulted. It is acknowledged and accepted by the Crown that they did as much as they could to assist once they had been arrested.

5. All these matters were before the sentenceing judge and he gave due regard to them. He fixed a starting point at 25 years' imprisonment in relation to the person who was described as the head of the syndicate. He quite properly considered that this was a serious case, involving as it did, a large quantity of drugs and the use of Hong Kong as a base for exporting the consignment to Australia.

6. The grounds of appeal in relation to the 1st applicant are that the judge set too high a starting figure when he used 23 years as the appropriate starting point. He had regard to the fact that it was the 1st applicant who purchased the boat and helped sail it first to Hong Kong and then on to Australia. He considered that the 1st applicant's ability in seafaring matters was important to the conspirators. Having regard to the 1st applicant's record of employment, it is clear that he 'was a man very experienced in seafaring matters in that he had been 16 years at sea and had risen to the position of first officer. The judge was quite entitle to have regard to this in fixing sentence. We consider that he was entitled to find the 1st applicant to be an important member of the conspiracy. We are satisfied that 23 years was an appropriate starting point.

7. The second ground of appeal is that the judge failed to take adequately into consideration the assistance that the 1st applicant had given to the police and that in the circumstances the 50% allowance was too low. We don't agree. This was a matter for the judge and in the circumstances of the case, we are satisfied that the 50% reduction which he gave to the 1st applicant was adequate.

8. A matter has been raised today relating to s.67A of the Criminal Procedural Ordinance in that the 1st applicant, and for that matter the 2nd applicant, were in police custody, before being brought before the court, for a period of six months. The Crown agree that this was so and that during that period they were given assistance by the 1st and the 2nd applicants. The provisions of s.67A are such that the period in custody before being brought before the Court will not be included in any calculation of time served by the 1st and 2nd applicants. We are satisfied the applicants should be given credit for this time. In respect of the 1st applicant we grant leave to appeal and reduce his sentence in respect of each charge by nine months'.

9. The 2nd applicant's grounds of appeal are the same as those of the 1st applicant. The first ground is that the judge was wrong in fixing a starting point at 20 years having regard to the fact that the 2nd applicant appears to have played a lesser role in the conspiracy. The judge dealt very adequately with this matter, he took into account everything that had been advanced on behalf of the 2nd applicant and we are satisfied that he was not wrong in fixing a starting point of 20 years.

10. The second ground of appeal is that the 50% reduction was not adequate in the circumstances of the case. We don't agree. We are satisfied that the judge quite property fixed on 50% as the appropriate reduction.

11. What I have said about s.67A applies to the 2nd applicant. His application for leave to appeal against sentence will be granted and his term of imprisonment in respect of each charge will be reduced by nine months.

Representation:

Mr D. Saw for Crown.

Mr Paul Tse (D.L.A.) for the 1st appellant.

Mr Laskey (D.L.A.) for the 2nd appellant.