HKSAR v. Gisella Saavedra Silva

CACC 114/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 114 OF 2008

(ON APPEAL FROM HCCC NO. 254 OF 2006)

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BETWEEN

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Before: Hon Stuart-Moore VP and Saw J

Date of Hearing: 28 November 2008

Date of Judgment: 28 November 2008

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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.This is an application for leave out of time in regard to a sentence of 13 years and 4 months’ imprisonment imposed by Deputy High Court Judge E Toh on 1 February 2007 for trafficking in a solid containing 769.78 grammes of cocaine.

2.In short, the applicant, a Peruvian who was aged 25 when she was sentenced, arrived in Hong Kong on a flight from Johannesburg on 30 July 2006.  When she was body-searched, a roll of twelve pellets of cocaine was found to have been secreted in her vagina.  A further eighty-seven pellets were secreted inside her body.  The applicant admitted swallowing the drugs in Brazil after going there from Lima.  Her reward for this exercise was to have been US$1,500.  The cocaine had an estimated street value of $898,283.

3.The judge said that a starting point after trial of “between 24 to 25 years’ imprisonment” was appropriate with a discount of “slightly more than 40 per cent” for matters which she considered had demonstrated more than the usual degree of remorse.

4.The applicant’s point is a simple one.  She complained that the starting point which the judge adopted was “unreasonably high”.  The applicant relied for this contention on the decision of this court, on 5 February 2008, in HKSAR v Garcia Palacios Marco Antonio, CACC 154/2007.  In that case, the same judge had adopted a starting point of 25 years’ imprisonment for 857.37 grammes of cocaine.  The Court of Appeal decided that a starting point of 22½ years’ imprisonment would adequately reflect the gravity of the offence.

5.Here, the quantity of cocaine was approximately 770 grammes and we consider that a starting point of 22 years’ imprisonment would have been appropriate.  However, giving the applicant almost the same discount as the judge gave in the court below when applied to a 22-year starting point, the applicant’s sentence, coincidentally, would be close to the sentence she is now serving; a 40 per cent discount from 22 years would have resulted in a sentence of 13 years and 2 months’ imprisonment.  There appears, therefore, to have been an inadvertent mathematical miscalculation by the judge who had intended to sentence on the basis of a 25-year starting point and Ms Anthea Pang, for the respondent, has accepted throughout that this is the position. 

6.As the judge had indicated a discount of slightly more than 40 per cent, we consider that, as a matter of principle, the applicant’s sentence should be reduced from a 22-year starting point to 12½ years’ imprisonment.  Accordingly, we shall give leave and, treating this application as the appeal, we allow the appeal and reduce the sentence by 10 months to 12½ years’ imprisonment.

Ms Anthea Pang, SADPP, of the Department of Justice, for the Respondent.

The Applicant, in person.