HKSAR v. Manzanares Zegarra De Vargas Norma

CACC 238/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 238 OF 2012

(ON APPEAL FROM HCCC 123/2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Cheung CJHC (giving the judgment of the court):

1.On 7 December 2012, we dismissed the applicant’s application for leave to appeal against sentence. We now give our reasons.

2.On 8 June 2012, the applicant was convicted on her own plea before V Bokhary J of one count of trafficking in a dangerous drug, namely, 1.62 kg of cocaine.  She was sentenced to 17 years’ imprisonment.

3.The applicant, aged 53, is a citizen of Peru.  On 13 October 2011, she arrived at Hong Kong International Airport on a flight from Johannesburg.  In the suitcase that she carried, there were two concealed compartments, each containing two packets of suspected dangerous drugs.  The suspected dangerous drugs when examined were found to be a total of 2 kg of a powder containing 1.62 kg of cocaine.  The seized dangerous drugs had an estimated retail value at the time of their seizure of HK$1,776,000.

4.Under caution, the applicant admitted to bringing the suitcase for reward.  She claimed that she had met a male named Carlos about a month before in a shopping arcade in Peru.  Carlos offered her free air‑tickets and a monetary award of US$2,000 for bringing a suitcase to Hong Kong and she was given another US$500 as her travelling expenses.  The plan was that after her arrival in Hong Kong, she would stay in a hotel and await further instructions from Carlos.  She initially denied but eventually admitted and accepted that she was trafficking in the seized dangerous drugs.

5.The mitigation urged before the sentencing court and the intended grounds of appeal she put forward before this court were essentially the same.  The applicant, separated from her husband for a long time, is a mother of four.  She had to make provision for two of them (namely, her 20‑year‑old daughter, a single mother, and her 10‑year‑old son), her grandson (aged 1) and her father.  She had been diagnosed with breast cancer and had been operated upon in Peru.  She was therefore in financial hardship and in debt.  The applicant’s father was in ill health and he stood to lose his house where the family lived as he was her guarantor in obtaining loans from the bank to pay for the medical expenses. Her daughter could no longer pursue her studies and had to work.  She was driven by her financial difficulties into committing the present offence.  She was still under treatment and supervision when embarking for Hong Kong in October 2011.  She was remorseful and asked for leniency.  She wanted to assist the authorities and she had already told everything she knew. Furthermore, the applicant is a foreigner coping with prison life in Hong Kong, physically separated from her family who is unable to visit her.  She is not accustomed to the culture and languages used here.

6.In sentencing her to 17 years’ imprisonment, the judge adopted a starting point of 23½ years.  She enhanced it for 2 years because the drugs had been imported into Hong Kong from abroad, making a total of 25½ years.  Having taken into account everything that had been urged in mitigation on her behalf by counsel, including her plea of guilty, the judge reduced the sentence from that starting point to one of 17 years.

7.We are of the view that the sentence passed by the judge is appropriate.

8.Guidelines for trafficking in amounts greater than 600 grammes of heroin or cocaine have been given in HKSAR v Abdallah [2009] 2 HKLRD 437.  For 1.2 to 4 kg, the guideline starting points for traffickers after trial are 23 to 26 years’ imprisonment, exclusive of any aggravating circumstances and subject to enhancement.

9.The starting point of 23½ years’ imprisonment in the present case is therefore within the relevant band.

10.As has been pointed out in Abdallah, it will be an aggravating factor calling for the enhancement of the starting point where an international element is involved.  Moreover, the court does not envisage that the enhancement for amounts above 1 kg will be less than 2 years’ imprisonment.  See paragraphs 42 and 43.

11.The enhancement of 2 years in the present case, given the international dimension of importing the drugs from outside Hong Kong, cannot be faulted.

12.The eventual sentence of 17 years’ imprisonment represents a discount of one‑third to reflect the applicant’s guilty plea.  In other words, no further reduction has been given by the sentencing court regarding the applicant’s personal background and hardship.  In our view, there is nothing wrong with this approach.

13.It has to be emphasized that, where, as here, the offence committed is grave, mitigating factors which, for less serious offences could lead to a discount, have little weight: R v Lau Tak‑ming [1990] 2 HKLR 370, 386F‑G.  As Silke VP pointed out, drug dealers are notorious for attempting to elicit sympathy from the courts for their middlemen by the use of “the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

14.Specifically, in relation to the applicant’s health condition, this cannot be a proper basis for reduction of sentence.  As has been pointed out before, ill‑health is not “a licence to commit crime”: HKSAR v Lkhaijav Bayanmunkh, CACC 320/2011, 2 April 2012, para 10.  We are entitled to assume that the Correctional Services Department will provide medical services adequate to each prisoner’s needs, and find no reason not to so believe in the present case.

15.As for the applicant’s hardship and hardship to her family, as this court (differently constituted) recently said in HKSAR v Daresa, CACC 155/2012, 5 October 2012:

“8. … It is notorious that persons from an impoverished background in third world countries are frequently employed by drug traffickers as drug couriers and drug mules to transport drugs from one country to another. The persons most readily tempted by this kind of crime are precisely persons such as this applicant who come from desperate circumstances and so are more likely to be willing to assume the risks attendant upon international drug trafficking. It is for this very reason that the courts will not be swayed by the plight of the trafficker.

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11. It is, of course, harder for the courts to ignore the suffering of innocent third persons who might be affected by the long period of imprisonment imposed upon the drug trafficker.  But this suffering is not visited upon them by the courts but by the drug trafficker who succumbs to the lure of easy money.  The court cannot allow the impact upon third parties to influence it into imposing a sentence less than that which is otherwise appropriate for the crime that has been committed.”

16.As for the applicant’s hardship arising from the fact that she is now serving a lengthy sentence in a foreign land, away from her family, this cannot possibly be a reason for reduction of sentence on the facts of the present case without contradicting the rationale for the enhancement of sentence already explained.  (For the question of whether reduction of sentence for “foreignness” is justifiable, see generally: Secretary for Justice v Tse Ki Wu [2002] 1 HKC 160.)

17.The applicant was not able to provide any useful information to assist the authority.  No discount could be given on this ground.

18.Looking at the matter in the round, a sentence of 17 years’ imprisonment after plea for the offence of trafficking in the present case is neither wrong in principle nor manifestly excessive.  In our view, it is an appropriate sentence.

19.For these reasons, the application for leave to appeal was dismissed.

Mr Wesley WC Wong DDPP, of the Department of Justice, for the respondent

The applicant appeared in person