HKSAR v. Saavedra Rosamarie Bernardo

CACC 424/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 424 OF 2011

(ON APPEAL FROM HCCC 37/2011)

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J U D G M E N T

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

1.The applicant faced a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 28 January 2011, she pleaded guilty to the charge at Eastern Magistrate’s Court as a result of which she was committed to the High Court for sentence.  On 30 March 2011 the applicant appeared before Deputy Judge P Li where she received a sentence of 6 years and two months’ imprisonment.

2.On 28 September 2011, the applicant indicated her intention to appeal against sentence out of time.  In support of her application, she swore an affirmation on 3 October 2011 to explain that at the time she was sentenced she was very confused, knew little English and did not know what to do. 

3.The applicant’s notice of appeal was, therefore, five months out of time.  No good reason has been given to us as to why we should grant her leave to appeal her sentence out of time.  The applicant was represented by counsel acting on the instructions of the Director of Legal Aid at the hearing before the High Court and we cannot accept that she would not have been advised of the options open to her at the conclusion of that hearing or that it should have taken six months for her to lodge a notice of appeal had she felt aggrieved by her sentence.

4.We have nevertheless examined the mitigation that was advanced by counsel on her behalf at the sentencing hearing as well as the learned Deputy Judge’s reasons for sentence.  His reasons cannot be faulted. He adopted a starting point of 9 and a half years imprisonment in respect of the trafficking in 234.26 grammes of a solid containing 107.49 grammes of cocaine, which was the operative amount of narcotic for sentencing purposes.  Given that the applicant was intercepted in the Customs arrival hall at Hong Kong International Airport upon her arrival on a flight from Manila with the drugs concealed in her body, he enhanced the starting point by six months for the international element involved in the offence, making an overall starting point of 10 years imprisonment.  He then gave the applicant the customary one third discount for her plea of guilty, thus reducing the sentence to 6 years and eight months imprisonment.  Acknowledging that the applicant had, upon her arrest, participated in a controlled delivery at the airport and done what she could to assist the authorities to intercept her contacts, which assistance was ultimately fruitless, the Deputy Judge gave the applicant a further discount of six months. 

5.In our judgment, the applicant received an entirely appropriate sentence, which may well explain her reticence in appealing against it.

6.The application for leave to appeal against sentence out of time is refused.

Mr Jonathan Man Tak Ho, ADPP of the Department of Justice, for the Respondent

The Applicant in person, present