HKSAR v. Cabahug Roselyn Dejerio

CACC 430/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 430 OF 2009

(ON APPEAL FROM HCCC NO. 226 OF 2009)

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Before:  Hon Stock VP and Hon Mackintosh J in Court

Date of Hearing:  3 August 2010

Date of Judgment:  3 August 2010

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J U D G M E N T

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Hon Mackintosh J (giving the judgment of the Court):

1.This is an application for leave to appeal against sentence.

2.The applicant, a 43-year old woman, pleaded guilty before Madam Justice Poon in the Court of First Instance, to trafficking proximately 1.9 kilograms of heroin hydrochloride which she had brought into Hong Kong at the airport, concealed in her luggage, on 21 February 2009.

3.The learned judge, having taken a starting point of sentence of 24 years’ imprisonment, reduced the term by the conventional one-third to 16 years, to reflect the plea of guilty.  The applicant seeks leave to appeal against that sentence.

4.Little needs to be added to the bare bones of the facts.  It is enough to say that having arrived in Hong Kong from Vietnam, the applicant was subjected to a check as she walked through the Green Channel at Customs.  When her suitcase was searched, packets of heroin were found concealed in the hard covers of five books which were in the case.

5.At first the applicant denied knowledge of drugs, saying that she had bought the books in Vietnam and they were gifts for her children in the Philippines.  The applicant said that she was on her way to the Mainland for business purposes.  She had a visa for that purpose.  Later analysis showed that there was a total of 2,671 grammes of a mixture, containing 1,940 grammes of heroin hydrochloride.  In February 2009, the retail value of such a quantity of heroin in Hong Kong was approximately $2.17 million.

6.The applicant, a Philippine national, has no criminal record in Hong Kong.  The learned judge was told by counsel appearing for her that she was separated from her husband and had two sons aged 18 and 15, who were receiving full time education in the Philippines.  The judge was also told by counsel about her mother, for whom it was said she was financially responsible; and who was suffering from ill health which required the expensive treatment.  She had been persuaded to deliver the drugs from Vietnam to Hong Kong and then to Mainland China for financial gain.

7.The applicant is not represented before us today but has submitted grounds of appeal which focused on her dissatisfaction with the sentence, and she has enlarged a little on that in her submissions, saying that she was not aware of the quantity of dangerous drugs that she was carrying at the time.  She asked this Court to reduce the sentence imposed upon her, essentially as an act of mercy.

8.At the time of the commission of this offence on 21 February 2009, sentence for trafficking in dangerous drugs such as heroin hydrochloride was generally based on guidelines set by the Court of Appeal in a case called Lau Tak Ming and others [1990] 2 HKLR 370 which set particular sentencing guidelines (for quantities of up to 600 grammes).

9.In 2009, the Court of Appeal revisited those guidelines to deal particularly with cases involved in much larger quantities than 600 grammes; and specifically to address the aggravating factor of importing hard drugs into Hong Kong.  That was in a case called Abdallah Anwar Abbas [2009] 2 HKLRD 437.  Judgment in that case was delivered on 12 March 2009, about three weeks after the commission of the present offence.  New guidelines were set out for large quantities of drugs and guidance was given as to the extent to which sentence should be aggravated by the fact of the importation.  The new guidelines were, in common with the established practice, expressed not to be retrospective in effect.  The judgment in that case incorporated in an analysis of a number of previous decisions of the Court in drug trafficking cases, and concluded that, having regard the previous decisions, the sentence imposed in that particular case was consistent with those decisions and was correct.  It was emphasised that the international element of drug trafficking, that is the importation of drugs into Hong Kong, had long been recognized as an aggravating factor in sentencing. 

10.The learned judge in the present case did not treat the Abdallah Anwar Abbas guidelines as having directed application; but instead referred to a number of cases which had come before the Court of Appeal since Abdallah Anwar Abbas.  It is not necessary to list them here.

11.On the basis of those cases, and having regard to the quantity of heroin involved in this case, and the aggravating factor of the importation of the drugs, the learned judge concluded a starting point of not less than 24 years’ imprisonment was appropriate.

12.Given the established approach to sentence referred to in previous decisions referred to in the Abdallah Anwar Abbas case, the adoption by the learned judge of a sentence of 24 years’ imprisonment before discount cannot be criticised.  The learned judge reduced the sentence by one-third from 24 years to 16 years to reflect the mitigation available, primarily, the plea of guilty.

13.Accordingly there is no merit to the applicant’s complaint.  The length of her sentence was wholly in line with established sentencing practice, and the application for leave to appeal is therefore dismissed.

Ms Agnes Chan, Senior Public Prosecutor, for the Respondent, HKSAR

The Applicant, in person