HKSAR v. De Bruin Michelle Rosy

CACC 409/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 409 OF 2009

(ON APPEAL FROM HCCC NO. 157 OF 2009)

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JUDGMENT

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

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

2.The applicant was convicted in September 2009 after trial before Line J and a jury of trafficking in a dangerous drug namely 1,018.61 gram of a mixture containing 398.44 gram of monoacetylymorphine hydrochloride and 353.46 gram of heroin hydrochloride.  She was sentenced to 20 years imprisonment.  The judge took a point of 22 years imprisonment to include the international element but gave two years credit for the significant time saved by the admissions of fact made on behalf of the defence.

3.In 2009 the applicant lodged an application for leave to appeal against conviction but not sentence.  That application was dismissed by a judgment of 15 September 2011 with reasons given on 19 September 2011.

4.In June 2013, the applicant lodged the current application in relation to sentence.

5.The reasons provided by the applicant for the delay in filing the application concerning sentence are, primarily , that after conviction she was, for a considerable time, in a state of confusion and found it very difficult to come to terms with what had happened to her; secondly, that she has for some time been trying to find a lawyer to represent her.

6.These reasons do not suffice to warrant an extension of time.  Whilst we can understand a state of distress after conviction as well as a desire to find legal representation, it is now in the region of four years since conviction and the reasons provided cannot reasonably explain that delay.

7.We have considered the question whether by refusing an extension of time, we would be shutting out a substantial and plainly arguable ground of appeal.  We are, however, satisfied, that no arguable ground of appeal against sentence is shown.

8.The applicant is a national of South Africa who, at the time of the offence, was aged 33 years.  She travelled to Hong Kong from South Africa via Turkey and was stopped at the airport here carrying upon her person 105 pellets which contained the drugs in question.  The sentence imposed by the judge was well within the guidelines for the quantity of drugs which the applicant was importing.

9.In her representations to the court, she prays in aid the financial straits which caused her to commit this offence and the fact that she has not been in contact with her children for several years and is very worried about their welfare.  There is also a suggestion, which is an echo of her defence at trial, that she did not know that she was carrying drugs but thought, rather, that she was carrying diamonds.  That was the question of fact which was the central issue at her trial and her assertion was rejected by the jury.

10.The fact that the applicant has children in South Africa of whose company she is deprived by reason of this lengthy sentence is a fact that inevitably draws considerable sympathy.  But it is difficult to believe – and clearly that jury did not believe – that she was unaware she was carrying drugs.  The iniquity of the drug trade is the dreadful harm caused to others, including the children of others, which is why the sentencing regime for international drug trafficking is so severe.

11.We see no basis upon which we might properly accede to this application and it is, accordingly, dismissed.

Mr Derek Lai, ADPP (Ag), of the Department of Justice, for the Respondent

The Applicant, acting in person