HKSAR v. Norena Gutierrez Cristhian Andres

CACC 319/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 319 OF 2014

(ON APPEAL FROM DCCC NO. 262 OF 2014)

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JUDGMENT

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Introduction

1.The applicant applies for leave to appeal against the sentences imposed on him in respect of offences of trafficking in 12.39 grammes of a powder containing 5.41 grammes of cocaine and possession of 42.36 grammes of a power containing 18.59 grammes of cocaine and 1.08 grammes of a solid containing 0.43 gramme of cocaine.

The Reasons for Sentence

2.On the trafficking charge the applicant did not pursue a claim that part of the drugs were for his own use and the judge adopted a starting point of 3 years and 6 months’ imprisonment.

3.On the possession charge the judge adopted a starting point of 15 months’ imprisonment which he then enhanced to allow for the latent risk that the drugs may fall into the hands of others. This provided him with a final starting point 2 years 3 months’ imprisonment.

4.Applying the totality principle he concluded that the total sentence should not exceed 5 years.  However he then went on to enhance the sentences by a further 3 months to allow for the aggravating feature that the applicant was a torture claimant and had committed the offences whilst awaiting the processing of his claim.  He then discounted the final sentences to allow for the pleas of guilty.  From starting points of 3 years 9 months and 2 years 6 months the sentences became 2 years 6 months and 1 year 8 months.  He then ordered that 12 months of the sentence for the second offences should be served consecutively to the sentence for the first offence.  The total sentence imposed on the applicant then became 3 years 6 months’ imprisonment.

Discussion

5.The enhancement for latent risk is arguably excessive given the applicant’s addiction and the prosecution’s acceptance that he had the drugs for his own use and he admitted that other drugs in his possession were to be trafficked.  I am also concerned that having reached a view of the appropriate totality the judge then enhanced the starting points further.

6.For these reasons I am of the view that leave to appeal should be granted.

Written submission by Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

Written submission by Mr H Y Wong, instructed by John M Pickavant & Co, assigned by DLA, for the applicant