HKSAR v. Suwanti

CACC 245/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 245 OF 2013

(ON APPEAL FROM HCCC 406 of 2012)

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J U D G M E N T

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Hon Macrae JA (giving the judgment of the court):

1.On 3 July 2013, the applicant pleaded not guilty to a count alleging that she had trafficked in 250 grammes of a solid containing 200 grammes of cocaine.  The trial proper commenced two days later on 5 July 2013.  Upon the conclusion of the prosecution case which had largely been undisputed, the applicant gave evidence.  During the course of cross-examination, she effectively admitted her guilt.  On the following day which was the fourth day of the trial, the applicant pleaded guilty.

2.The facts giving rise to the allegation were very simple.  On 22 March 2012, a registered airmail parcel addressed to a Ms Hidayah at an address in Sheung Shui arrived from Argentina. An astute customs officer opened the parcel and found cocaine secreted within the packaging.  There was a contact telephone number on the parcel.  Accordingly, the number was called by a customs officer posing as a postal officer and the applicant answered the telephone, claiming to be Ms Hidayah.  Arrangements were then made for the applicant to collect the parcel from the post office.  This she did, using an expired passport in the name of Hidayah, whereupon she was arrested.

3.When she was subsequently interviewed, the applicant denied knowledge of the contents of the parcel, saying that she been asked to collect it by her African boyfriend, called Samuel.

4.In sentencing the applicant, the judge was plainly aware of the circumstances leading to the change of plea.  She acknowledged that most of the material facts had been agreed by way of admitted facts, thus reducing an 8-day trial to effectively three days of evidence, that the applicant had admitted her guilt during her own evidence and had changed her plea as a result.  She was also aware that the applicant had done her best to provide information as to the identity and whereabouts of Samuel, albeit to no avail.

5.The judge adopted a starting point of 12 years’ imprisonment in respect of a quantity of 200 grammes of cocaine narcotic, in accordance with the heroin guidelines in R v Lau Tak-ming [1990] 2 HKLR 370, as extended and applied to cocaine by Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.  She then discounted the sentence by 25% for the late plea, resulting in a sentence of 9 years’ imprisonment.  The applicant now appeals against that sentence.

6.The applicant complains in her general grounds and before us today that the sentence was too long in view of her plea of guilty.  She has further written and produced a letter which has been read to us this morning in order to show her remorse and regret for committing this offence.

7.As we have indicated, the judge was obviously aware of the somewhat unusual circumstances of the plea of guilty.  She was the trial judge and was in the best position to determine the appropriate discount appropriate to those circumstances.  Whilst the applicant is to be applauded for her late change of plea, the fact is that four days of court and jury time were taken up after arraignment (and eight days set aside) for a trial which, had she pleaded guilty at the outset, would have been over and dealt with in one day; thus allowing the court to accommodate other defendants awaiting trial.  In these circumstances, the applicant could not expect to receive the customary one-third discount for her plea.

8.In our judgment, the judge cannot be faulted either in the starting point she adopted for sentence or in the discount she applied in the circumstances to that starting point.

9.The application is refused.

Ms Vivien Chan, SPP of the Department of Justice, for the respondent

The applicant appeared in person