HKSAR v. BONIFACIO GOMES

CACC 386/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 386 OF 2015

(ON APPEAL FROM HCCC NO. 185 OF 2011)

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JUDGMENT

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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicant seeks leave out of time to appeal against the sentence of 14 years and 8 months’ imprisonment imposed on him on 11 August 2011 by Line J in the Court of First Instance, following his committal for sentence to the court on his plea of guilty in the Magistracy on 27 May 2011 to a single count of trafficking unlawfully in a dangerous drug, namely 0.85 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The applicant’s Notice of Application, Form XI, was filed with the court on 6 November 2015.  It follows that his application was made almost 4 years and 2 months out of time.

The facts

3.  On 13 November 2010, the applicant, a citizen of Guinea-Bissau, arrived at the Hong Kong International Airport via Addis Ababa.  Having been intercepted on suspicion of having concealed dangerous drugs inside his body, the applicant was sent to Queen Elizabeth Hospital where, on 14 November 2010, he discharged 63 pellets.  They were found to contain the cocaine the subject of the charge.  Under caution, the applicant admitted that he had swallowed the pellets knowing them to contain dangerous drugs.  Further, he knew that it was illegal to bring them into Hong Kong.

Reasons for sentence

4.  In his reasons for sentence, the judge said that the 850 grammes of cocaine in which the applicant had trafficked unlawfully fell roughly in the middle of the bracket of 600 to 1,200 grammes of cocaine, for which the appropriate range of sentence was 20 to 23 years’ imprisonment.

5.  The judge stipulated 21 years’ imprisonment as the starting point for sentence, to which he said he added one year’s imprisonment to reflect the international aspect in the commission of the offence.  Having afforded the applicant a discount of one-third to reflect his plea of guilty in the Magistracy, the judge sentenced the applicant to 14 years and 8 months’ imprisonment.

Reasons for filing the Notice of Application for leave to appeal against sentence out of time and grounds of appeal

6.  In Form XI, and in his affirmation of the same date, namely 6 November 2015, the applicant contended that the reason he had filed his Notice of Application for leave to appeal against sentence out of time was that there had been a “change of circumstances”, namely that he had come to learn that in another case, HCCC 89/2013[1], in which the defendant had been sentenced for unlawfully trafficking in a greater amount of dangerous drugs than in his own case, nevertheless a lesser sentence of imprisonment had been imposed.

7.  In a letter to the Court dated 4 March 2016, the applicant submitted that the judge had erred in stipulating a starting point for sentence of 22 years’ imprisonment.  In support of that submission, he referred to the judgment of this Court in HKSAR v Jocelyn Sanchez Badua.[2]  Further, he asserted that the amount of cocaine in which the defendant had unlawfully trafficked in HCCC 89/2013 was 860 grammes.

The respondent’s submissions

8.  Mr Matthew Leung submitted in his written submissions on behalf of the respondent that the applicant had not advanced any grounds to explain the substantial 4-year delay in giving notice of the application for leave to appeal against sentence.  He drew the attention of the Court to the judgments of this Court in HKSAR v Oh Chun Kit [3] and in R v Wong Kai Kong [4] as relevant to the Court’s consideration of the application for leave to appeal out of time.  He submitted that before the Court could grant such an indulgence, “substantial grounds must be shown for the delay” and that “the longer the delay, the more onerous is the duty of the person making the application.”

Sentencing guidelines

9.  Mr Leung reminded the Court that the judgment of this Court in Attorney General v Rojas [5] stated that the sentencing guidelines for trafficking unlawfully in heroin were applicable to cocaine.  Further, he said that, as the judge noted, the judgment of this Court in HKSAR v Abdallah [6], provided guidelines for sentencing in cases of unlawful trafficking in heroin for amounts greater than 600 grammes, in particular it stipulated that unlawful trafficking in the bracket of 600 to 1,200 grammes of heroin fell in a range of sentence of 20-23 years’ imprisonment.  He said that, having regard to those guidelines, an arithmetic approach to sentence resulted in a starting point for sentence of 21.25 years.  So, Mr Leung submitted that the starting point of 21 years’ imprisonment stipulated by the judge was clearly within the appropriate range.

10.  Mr Leung submitted that the applicant’s reliance on the judgment of this Court in HKSAR v Jocelyn Sanchez Badua was misplaced.  It preceded the guidelines for sentence articulated in the judgment of this Court in HKSAR v Abdallah and was not relevant.  Mr Leung submitted that the lesser sentence imposed on the defendant in HKSAR v Lizarazo Salazar Juan Pablo fell within the appropriate range of sentence available to the judge.  That defendant trafficked unlawfully in 830 grammes of cocaine, not 860 grammes as asserted by the applicant, a lesser amount than that in which the applicant trafficked.  The same judge, Line J, stipulated a starting point for sentence of 21 years’ imprisonment, which he enhanced by one year’s imprisonment to reflect the aggravating factor in the commission of the offence, namely the importation of the dangerous drugs into Hong Kong.

A consideration of the submissions

11.  The applicant’s delay of 4 years and 2 months in giving notice of his application for leave to appeal against sentence represents a very substantial delay.  He has advanced no acceptable reasons for the delay.  In those circumstances, we would refuse him leave to appeal out of time.  However, we have also considered the merits of his application.  There are none.  The sentence imposed on the applicant was squarely within the range of sentence that lay within the discretion of the judge in applying the guidelines articulated in the judgment of this Court in HKSAR v Abdallah.  We are satisfied that the initial starting point for sentence of 21 years’ imprisonment stipulated by the judge and the enhancement of one year’s imprisonment for the aggravating factor of importing the dangerous drugs into Hong Kong were entirely appropriate, as was the discount of one-third afforded to the applicant from the resulting enhanced starting point for sentence of 22 years’ imprisonment.

Conclusion

12.  For the reasons we have given, we refuse the application for leave to appeal against sentence out of time.