HKSAR v. Gomes Da Silva Marcia

CACC 246/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 246 OF 2014

(ON APPEAL FROM HCCC NO. 252 OF 2010)

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REASON FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.On 7 March 2011, the applicant (Gomes Da Silva Marcia), then a 25 year-old woman from Brazil, pleaded guilty to a charge of trafficking in 733.04 grammes of cocaine before D Pang J (the judge) in the High Court and was sentenced to 14 years’ imprisonment.  The judge adopted a 21-year starting point and reduced the sentence by one-third on account of the applicant’s guilty plea.

2.On 21 July 2014, over three years after she was sentenced, the applicant sought leave to appeal against sentence out of time.  At the end of the hearing, we dismissed the application and indicated that we would hand down our reasons.  This we now do.

The Facts

3.With a search warrant, the police raided Room 2257 of Harbour Plaza Resort City, a hotel in Tin Shui Wai and found the applicant standing next to the bed.  The police found, inside the wardrobe, a brown plastic bag containing 79 pellets of dangerous drug and a piece of paper with the number “79” written on it.  When cautioned, the applicant gave no reply.  However she subsequently admitted that she had brought the dangerous drugs from Brazil to Hong Kong for financial reward.  Immigration records showed that the applicant arrived at Hong Kong on 3 February 2010.

4.The total weight of the 79 pellets of substance was 835.78 grammes containing 733.04 grammes of cocaine with a retail value of about $750,000.

The mitigation

5.The applicant had no criminal record in Hong Kong or in Brazil.  She said she came from a deprived background and committed the offence to improve her mother’s livelihood and to start a small business.

Reasons for Sentence

6.The judge took the view that the case had a trans-national element.  Taking the quantity of cocaine in question and there being no other mitigating factor, the judge adopted a starting point of 21 years and reduced it by one third to 14 years on account of the guilty plea.

Grounds of Appeal

7.In a letter accompanying her application, the applicant said she came to Hong Kong with a disabled boyfriend, intending to make some money to pay for his medical expenses and to support their 11 year-old son.

8.The applicant said since her arrest, her boyfriend had broken up with her and that her son passed away last year in a hit and run accident.  She said as a result, her mother’s depression had deteriorated.  She suggested the 21-year starting point was too high and asked for a chance.  The applicant emphasized that after her arrest, she had fully co-operated with the police.

Discussion

9.Drug trafficking is an evil business and the courts have repeatedly emphasized that whoever is involved in such an evil business, irrespectively of his/her background and the circumstances in which the offence is committed, can expect no mercy.  It is hoped that with a robust approach, people will be deterred.

10.In order to dispel any possible false hope for a lenient sentence, the Court of Appeal had clearly laid down sentencing guidelines for the offence of drug trafficking.  For trafficking in 400 to 600 grammes of cocaine, the starting point is 15 to 20 years’ imprisonment. (See R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Pedro Nel Rojas, unreported CACC 15/1993)  In HKSAR v Abdallah [2009] 2 HKLRD 437, the guidelines were extended and for trafficking in 600 to 1,200 grammes of cocaine, the starting point is 20 to 23 years’ imprisonment.

11.The quantity of cocaine trafficked by the applicant was 733.04 grammes, which would attract a starting point of over 20 years’ imprisonment.  With the aggravating factor identified by the judge, namely the trans-national factor, the 21-year starting point adopted by the judge, far from being manifestly excessive, is in fact a lenient sentence.

12.It is true that the applicant had fully co-operated with the police by pleading guilty to the charge and by providing information.  The judge had given her the customary one-third discount of sentence.  The judge was entitled, in the exercise of his discretion, not to give her any further discount for the information provided by the applicant as the information was not useful and had not led to any arrest.

13.We had sympathy for the applicant due to the family difficulties she faces.  However those matters did not justify any reduction of her sentence.  The fact that the applicant is a foreigner is not a mitigation factor to any substantial degree either.  In R v Garry La Verne Ohmert CACC 213/1985, it was stated that:

“While it is quite right to say that anybody caught in somebody else's country and not speaking the local language will find prison a more disagreeable experience than would otherwise be the case that in general is not a circumstance which the court will take into account in mitigation to any substantial degree.”

14.We had considered the facts of the case and everything urged upon us by the applicant.  We were not persuaded that the starting point adopted by the judge and the sentence he imposed on the applicant were manifestly excessive.

15.The application for leave to appeal against sentence out of time was therefore dismissed.

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

The applicant appeared in person