HKSAR v. Soliz Antelo Richard

CACC 539/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 539 OF 1997

(ON APPEAL FROM HCCC NO. 72 OF 1997)

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J U D G M E N T

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

This applicant pleaded guilty in August 1997 to trafficking in a very substantial quantity of cocaine hydrochloride. The offence was committed in September 1996. The applicant is from Bolivia and the agreed facts stated that he was offered US$8,000 by a man called Wilson if he would smuggle cocaine into Hong Kong and he did so. The cocaine was hidden in a piano accordion which was placed in a bag, and the applicant flew to Hong Kong. He was then aged 25 years and, it was said, he was a university student. He was stopped by police coming out of the airport and the drugs were found. The quantity was 8.68 kilos of a mixture containing 133.79 grammes of cocaine, and 6.998 kilos of cocaine hydrochloride.

2 The judge took a starting point of 24 years, and reduced that by one third to a term of 16 years' imprisonment to give effect to the applicant's plea of guilty.

3 On 10 September 1997 the applicant filed a notice seeking leave to appeal against sentence saying that he is a foreigner, that it was very hard for him to be imprisoned in a foreign place for such a long time, that he had pleaded guilty, and that he considered in the circumstances that his sentence was very hard.

4 But on 27 November 1997 he gave notice of abandonment of his application, and the application was accordingly formally dismissed.

5 Now, over three and a half years later, he seeks to revive the application for leave to appeal against sentence.

6 The principles upon which the court acts in such a situation have often been articulated; see for example, HKSAR v CHAN Ka-po CACC 354/2000 (unreported), HKSAR v CHAU Kwok-hung CACC 67/1996 (unreported) and HKSAR v SECK Kai-tong CACC 205/1996 (unreported), all of which embraced the test in the case of Medway 62 Cr App R (1979) 85 and summarised thus in SECK Kai-tong:

"It is well established that there is no inherent jurisdiction on the part of the court to permit the previous abandonment of an application for leave to appeal to be treated as a nullity unless it can be shown that in some way the mind of the applicant had not gone with the act of abandonment";

Medway itself saying that the court had to be satisfied that the abandonment was not the result of a deliberate and informed decision.

7 In this case, in the written material which this applicant advanced in February 2001, he said that he intended to appeal but that his mother was at the time unwell and that the thought of his mother's condition and his own predicament persuaded him to drop the appeal. Today, however, he advances further reasoning, namely, that he had hoped to secure a transfer to Bolivia in order to serve his sentence, and that his priest had told him that if he wanted to pursue that avenue he should abandon his appeal against sentence. Frankly, that makes no sense to us because whether his sentence was its present length or a reduced term, he would still have wished, no doubt to pursue an application for a transfer if available to him; and, secondly, we very much doubt that that was indeed the reason why he abandoned his application, for if that were the reason, one would have expected to find that reason stated in his letter to this court, dated 20 February 2001. As for the other reason, which relates to his mother's condition, whilst we are prepared to accept that she was indeed unwell, it is clear, from the mitigation advanced at trial, that his mother's ill health was nothing new. Indeed, it was said to have been the cause of him committing the offence, for he wished to raise the money.

8 In respect of both reasons advanced for abandoning his application for leave to appeal against sentence, it is clear that we cannot say that his decision was other than a deliberate and informed decision, or that his mind did not go with his deed. There is no basis for treating the abandonment as a nullity, and in so far as there is before us an application to treat the abandonment as a nullity, it is dismissed.

9 Although we must thus dispose of this case for the reasons we have given, we have nonetheless heard what the applicant has had to say as to the suggested merits of his complaint as to sentence, and we have also read what he has to say in that regard. Having considered the merits of the matter, we would say that the starting point of 24 years' imprisonment for importing seven kilos of cocaine from South America was not a day too short and that, had we been able to entertain an application for leave to appeal against sentence, it is an application which would have been doomed to fail.