HKSAR v. Benchamawichit Natacha

CACC 287/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 287 OF 2008

(ON APPEAL FROM HCCC NO. 196 OF 2007)

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Before : Hon Stock and Hartmann JJA in Court

Date of Hearing :  24 March 2009

Date of Judgment :  24 March 2009

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court) :

1.The applicant seeks leave to appeal against sentence out of time.

2.On 15 October 2007 she was sentenced by Lunn J, on her plea of guilty, to a term of eight years imprisonment for trafficking in a mixture containing 217.54 g of heroin hydrochloride.

3.She lodged the notice of application in August 2008, so she is very substantially out of time.  Today, she explains her delay by asserting that when she discovered her mother was ill, she decided to lodge the application.  She has also asserted in writing that the reason for the delay was the discovery by her in 2008 of the fact that, in a wholly separate case, someone else had been the beneficiary of a sentence less than hers for trafficking in a similar quantity of drugs; this complaint also forms one of the grounds of the application.  We do not have the facts of that case and, in any event, the question is whether in the applicant’s case the sentence was or was not manifestly excessive or wrong in principle. 

4.There is in the event no justification for an extension of time.

5.We can state nonetheless that we have studied the papers in her case and the several detailed letters which she has submitted to the Court and we are satisfied that there would be no warrant for disturbing the sentence passed on her.  She brought the drugs in question, well hidden on and in her person, from Thailand.  The starting point of 12 years imprisonment adopted by the judge was appropriate for this quantity of heroin and, given the international element to the offence, the applicant could not have justifiably complained had the judge aggravated that sentence on that account before according the one third discount for her plea of guilty.

6.The applicant was aged only 23 years at the date of sentence and has a family, including young children, in Thailand.  She seeks to impress upon the court the plight of her children and of her parents, one of whom is said to be ill.  Whilst one always has sympathy for the families of those who have received lengthy sentences, not least when that sentence is to be served away from the home jurisdiction, it is well established that in this category of offence such circumstances do not amount to mitigation.  The courts, despite that sympathy, are duty-bound for the protection of society to steel themselves and to send out the consistent message, especially to those who would import drugs into Hong Kong, that sentences for trafficking in dangerous drugs will be harsh. 

7.The applicant prays her children in aid of her case.  We do not dismiss the hardship that is occasioned them and to her by the separation but it must be remembered that one of the reasons for which the courts in this jurisdiction pursue a consistently stern sentencing policy in relation to this offence is the recognition of the grave harm caused to children and their families by the trade in dangerous drugs.

8.Accordingly, the application for leave to appeal against sentence out of time is dismissed.

Applicant in person

Ms Winsome Chan, SPP, of Department of Justice for the Respondent