HKSAR v. Joanne Tracy Rayner

CACC 16/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 16 OF 2014

(ON APPEAL FROM HCCC NO. 245 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Lunn VP (giving the judgment of the court):

1.The applicant seeks leave to appeal out of time against the sentence of 13 years and 2 months’ imprisonment imposed on her on 20 October 2010 by Deputy High Court Judge Patrick Li, as he was then, following her conviction on her plea of guilty to a single count of unlawfully trafficking in dangerous drugs on 26 March 2010, namely 548.53 grammes of heroin hydrochloride.

THE FACTS

2.The applicant, a South African national, arrived at Hong Kong International Airport from Dhaka on 26 March 2010.  Whilst on her way to take a ferry to Humen in the Mainland the applicant was intercepted by Customs & Excise officers.  Initially, the applicant denied having any check-in luggage.  However, having been confronted with a consignment note attached to her ferry ticket, she acknowledged that she did have check-in luggage, which she identified in the Arrival Hall as a red suitcase.  A search of the suitcase revealed the presence of three cans, which were found to contain the heroin hydrochloride the subject of the charge.

3.Although in a record of interview the applicant denied knowing the contents of the cans, in pleading guilty to the offence she accepted specifically that she was trafficking in the dangerous drugs.

Reasons for sentence

Starting point

4.In sentencing the applicant, the judge acknowledged that she had no criminal record, either in Hong Kong or South Africa.  Noting that the guidelines for sentencing in cases of unlawfully trafficking in heroin provided in the judgment of this Court in The Queen v Lau Tak Ming[1]stipulated that unlawful trafficking in amounts of 400 to 600 grammes of heroin hydrochloride fell in the range of sentence of 15 to 20 years’ imprisonment, the judge said that he took a starting point for sentence of 18 years and 9 months’ imprisonment.

Enhancement

5.To reflect the aggravating factor in the commission of the offence of the importation of the dangerous drugs into Hong Kong, the judge enhanced sentence by one year’s imprisonment.

Discount

6.The judge said that he afforded the applicant a discount of one-third from the resulting total sentence of 19 years and 9 months’ imprisonment.  Accordingly, he sentenced the applicant to 13 years and 2 months’ imprisonment.

Grounds of appeal against sentence out of time

7.By Form XI, filed with the Court on 15 January 2014, the applicant gave notice of her application for an extension of time in which to apply for leave to appeal against sentence.  In an affirmation attached to the Form, filed on the same date, the applicant acknowledged that she was aware of the fact that the application was “out of time”.  However, she advanced no reasons why she should be granted an extension of time.  In respect of the merits, the applicant simply sought the mercy of the Court.  She said that her daughter, who had three children, was facing a divorce and she wished to assist her emotionally.  She could not do that from Hong Kong.

8.In her oral submissions today the applicant said that her daughter had three children under the age of five years.  Her daughter and the children lived with her daughter’s husband and family in Johannesburg.  Her daughter was the victim of an abusive husband.  However, none of her own family remained in South Africa.  In those circumstances, her daughter was very vulnerable to abuse.  That situation has occurred after the expiration of the time in which application is to be made for leave to appeal against conviction. That was the explanation for her application for an extension of time in which to file that application.

A consideration of the submissions

9.The applicant has advanced no reasons cogent reasons, why her application for an extension of time in which to apply for leave to appeal against sentence should be granted.

10.The starting point of 18 years and 9 months stipulated by the judge was entirely appropriate having regard to the guidelines articulated in Lau Tak Ming, as was the enhancement of sentence by one year’s imprisonment for the aggravating factor in the commission of the offence of the importation of the dangerous drug to Hong Kong.[2] Furthermore, the judge afforded the applicant the discount from the starting point taken for sentence to which she was entitled.

11.Whilst the Court has sympathy for the applicant’s personal circumstances, in particular the difficulty of dealing with family problems at a great distance, this Court has said on many occasions that, given the seriousness of this kind of offence, personal circumstances carry little weight with the court.  There are no merits in the applicant’s grounds of appeal against sentence.

Conclusion

12.Accordingly, the application for leave to appeal against sentence out of time is dismissed.

Ms Mickey Fung, SPP, of the Department of Justice, for the respondent

Applicant appeared in person

[1] The Queen v Lau Tak Ming [1990] 2 HKLRD 370.

[2] HKSAR v Abdallah [2009] 2 HKLRD 437, at paragraph 43.