HKSAR v. AMARILLA JUAN RAMON

CACC 125/2022

[2023] HKCA 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 125 OF 2022

(ON APPEAL FROM HCCC NO 477 OF 2013)

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J U D G M E N T

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1.  The applicant applies for leave to appeal against a sentence imposed on him on 22 January 2014, which is 8 years and 7 months ago. The application is therefore inordinately out of time.

2.  On 3 April 2013, the applicant, an Argentinian national, arrived in Hong Kong on an international flight from Sao Paulo, Brazil via Doha, Qatar.  Customs officers found concealed in his luggage 5.22 kilogrammes of a solid containing 3.63 kilogrammes of cocaine.  On 22 January 2014, following his plea of guilty to trafficking in the drugs, the applicant was sentenced to 17 years and 4 months’ imprisonment.

3.  The applicant’s reason for appealing his sentence out of time is that he has physical evidence in his personal property that shows Customs officers have made a mistake during the investigation of his case.  He states that the physical evidence consists of a Casino Card Play (issued in Argentina)  which he found in his property on 10 March 2021, after his return to prison from Siu Lam Psychiatric Centre, and the injection of eight vaccines which caused him to lose weight and suffer from dizziness and heart palpitations.  No plausible explanation has been provided by the applicant for the inordinate delay in filing the application, nor on how the matters he has mentioned have a bearing on the sentence he received.

4.  An examination of the court papers reveal that at his sentence the applicant was legally represented by very experienced counsel, who mitigated on his behalf.  The applicant agreed a summary of facts in which he admitted that he knowingly imported the drugs into Hong Kong. 

5.  The sentencing judge adopted a starting point of 25 years and 6 months’ imprisonment, which he enhanced by 2 years for the international element to 27 years and 6 months’ imprisonment.  He reduced the notional starting point by 1 year and 6 months to 26 years’ imprisonment for the applicant’s participation in a controlled delivery and willingness to assist the authorities.  After a one third reduction for the applicant’s guilty plea, he sentenced him to 17 years and 4 months’ imprisonment.  The judge followed the applicable sentencing guidelines and principles and there is no cause for complaint for the sentence the applicant received. 

6.  It is quite apparent from the grounds advanced by the applicant to appeal his sentence that they have no merit to them.  They are vague and nonsensical.  At the hearing of this application, the applicant acknowledged his guilty plea and sentence but made rambling claims about being an ex-federal agent to explain his involvement in the case.  He also complained about being assaulted in prison in July 2017 and December 2018 but as pointed out to him this was not relevant to the application before the court.  It appears that he is mentally unwell and this may explain the nature and timing of this application.  There is plainly no justification for the applicant appealing his sentence so late in the day.  The application for an extension of time to file a leave application to appeal against sentence is therefore refused.

7.  Although the applicant appears to be mentally unwell, he appears to understand and appreciate the nature and purpose of the proceedings he has initiated as well as the likely consequences in pursuing an unmeritorious application.  I therefore remind the applicant of his right to renew his application for leave to appeal against sentence out of time to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a further direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.  However, I would suggest that the prison authorities to arrange appropriate counselling and medical assistance to the applicant.