HKSAR v. RUBIANO RESTREPO JOSE IGNACIO

CACC 487/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 487 OF 2012

(ON APPEAL FROM HCCC NO. 320 OF 2012)

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JUDGMENT

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Hon. Yuen JA (delivering the judgment of the Court):

1.  On 20 November 2012, the Applicant was sentenced in the High Court by Deputy Judge Stuart-Moore to a term of imprisonment of 10 years following his plea of guilty to a charge of trafficking in dangerous drugs.

Charge

2.  In April 2012 the Applicant who is from Columbia was intercepted by Customs officers at the airport after arriving from Doha.  He was searched.  He was then taken to Queen Elizabeth Hospital where an examination confirmed the presence of foreign objects in his body cavity.  He subsequently discharged 75 packets of dangerous drugs - a total of 380g of cocaine in a solid weighing 820g.  The estimated retail value was $958,580.  

3.  The Applicant admitted in an interview with the authorities that he had ingested the 75 packets of cocaine and he had been instructed that on arrival he was to check in at a hotel and call a telephone number for someone to come and collect the packets.  He pleaded guilty to the charge of trafficking in dangerous drugs.

Sentence

4.  In mitigation at the trial his counsel said that the Applicant was from a city that had the highest unemployment rate in Latin America. He had been of previous good character but had been unemployed for some time.  He had 2 children to support and his mother needed money for an operation.  He was therefore easy prey for members of a drug syndicate which offered him US$4,000 for his services.  His mother died while he was in custody here.  

5.  Following the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370, the judge adopted a starting point of 14 years and 6 months imprisonment.  To that he added 6 months for the aggravating feature of importation.  After applying the conventional 1/3 discount for the plea of guilty, the Applicant was sentenced to 10 years imprisonment. 

Grounds of appeal

6.  The Applicant now seeks leave to appeal.  He has referred the Court to the case of Zuberi Zuberi Mussa HCCC146/2012.  In that case which occurred in October 2011 the defendant was arrested at the airport after a flight from Addis Ababa.  He was taken to hospital where he discharged 76 pellets containing dangerous drugs, in that case 380g of heroin in a mixture weighing  950g.  The estimated retail value was $635,550.  He pleaded guilty to trafficking in dangerous drugs. McWalters J took as a starting point a term of 13 years, and added 6 months for the aggravating feature of importation.  Taking into account the plea of guilty, the final sentence was 9 years imprisonment.

Lau Tak-ming guidelines

7.  The present case does have features similar to Zuberi’s case.  Both defendants are from foreign countries, both were of previous good character and both said they had committed the offences as they were desperate for money to pay for medical expenses for members of the family.  Both had taken substantial risks in ingesting a large number of pellets containing dangerous drugs. Although the estimated retail value of the drugs in Zuberi’s case was less (even allowing for some inflation in the 6 months between October 2011 and April 2012), the weight of the drugs was similar and the guidelines in Lau Tak Ming which was a case of trafficking in heroin applies also to cocaine (see AG v Pedro Nel Rojas [1994] 2 HKCLR 69).

8.  We can understand why the Applicant has referred us to the sentence in Zuberi, but the issue in this application for leave to appeal is whether the sentence in the present case is wrong in principle or manifestly excessive.  If it is not, the fact that another defendant in another case has received a more lenient sentence cannot engender in the Applicant a genuine sense of grievance (see HKSAR v Mohamed Omar Ally CACC407/2008).

9.  We take the view that when the guidelines in Lau Tak Ming are applied, the judge in the present case was entitled to arrive at a starting point of 14 years and 6 months, and he was correct to add 6 months to reflect the aggravating feature of importation.  There was no error in principle and the sentence was not manifestly excessive.

Order

10.  Accordingly we have to refuse the application for leave to appeal.