HKSAR v. Diaz Rachel Ann

CACC 326/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 326 OF 2006

(ON APPEAL FROM HCCC NO. 198 of 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP and Beeson J

Dates of Hearing : 12 June 2007 and 8 November 2007

Date of Judgment : 8 November 2007

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 22 March 2006, the applicant (D2 at trial), aged 18, pleaded guilty to trafficking with two others (D1 and D3) in a mixture containing 701.79 grammes of heroin hydrochloride.  Deputy High Court Judge Longley sentenced the applicant, on 3 April 2006, to 10 years and 8 months’ imprisonment against which she now seeks leave to appeal out of time.  On the same occasion, D1, aged 15, received a sentence of 9 years’ imprisonment and D3, aged 21, was sentenced to 13 years and 4 months following their pleas of guilty.

2.The judge had taken a starting point of 20 years’ imprisonment for D3 whereas, for sound reasons, he adopted a 16-year starting point for D1 and the applicant.  In D1’s case, a discount of just under 44 percent was given as he had been prepared to testify for the prosecution against the applicant although, in the event, he did not have to do so as a result of her guilty plea just prior to trial.

3.The applicant was given a one-third discount to reflect the plea she had entered.  No criticism of the term imposed by the judge, in the circumstances which prevailed at the time of sentencing, is made in these proceedings.

4.It has for some time been anticipated that the applicant was minded to cooperate with the authorities.  She has now, since being sentenced, honoured her word.  We have been supplied with detailed information about the nature of the assistance she has provided.  This has satisfied us that the applicant’s cooperation with the authorities has not only been valuable but has had tangible results.

5.In the light of these events, the applicant is now entitled to receive an increased discount.  Bearing in mind the discount in sentence accorded to D1, and taking the view that the applicant is entitled as a matter of principle to a greater discount than he was given (having given evidence in other proceedings), we propose to reduce the applicant’s sentence by half from the starting point of 16 years’ imprisonment adopted by the judge.  Giving effect to this, we shall reduce the applicant’s sentence to a term of 8 years’ imprisonment.

6.Accordingly, we shall grant leave and, treating the hearing as the appeal, we allow the appeal to the extent we have indicated.  This has the effect of reducing the applicant’s sentence by 32 months.

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent.

Mr Peter Callaghan, instructed by Messrs Boase Cohen & Collins, assigned by Director of Legal Aid, for the Applicant.