HKSAR v. ROCHA RAMIREZ LUISA DEL CARMEN

CACC 518/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 518 OF 1999

(ON APPEAL FROM HCCC 39 OF 1999)

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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):

1 This applicant seeks to revive an application for leave to appeal against sentence which she abandoned in April 2001. To succeed, she must show that the abandonment was a nullity.

2 The applicant is a Mexican national who was convicted in September 1999 after a trial in the High Court before Beeson J and a jury, of trafficking in about 6 kg of cocaine. She lived in Bolivia and flew to Hong Kong via Brazil and Tokyo, carrying a suitcase which contained the drugs packed as coffee samples. She left the case at the airport, and there was an attempt by a man on her behalf to collect it. The customs officers had in the meantime discovered the illicit nature of the case's contents and, posing as airline employees, they went with it to her hotel in Hong Kong. She presented the counterpart of the suitcase ticket, and she was arrested.

3 Her defence was that she thought that the contents were coffee samples. She had left the case at the airport, she said, because by the time of her arrival, she had become suspicious that the contents might indeed be illicit.

4 She was convicted by the unanimous verdict of the jury on 21 September 1999. She was sentenced on 6 October 1999 by which time the sentencing judge had the benefit of medical reports. Extensive mitigation was advanced by counsel on her behalf, which concentrated on her medical condition and, upon the fact that she had children in South America, for one of whom, in particular, she was very concerned, for apparently there were difficulties about the care of that child. Indeed, the judge invited counsel to make a report to the International Social Services so that the applicant's concerns might be addressed.

5 Mention was also made in mitigation of her foreignness as well as the fact that she spoke only Spanish. The medical report showed that she had provided no history of mental illness but that in February 1999 she developed a psychosis whilst in custody and that treatment was started. The opinion given in October 1999 was that she was suffering a mental illness, probably schizophrenia, of some months' duration but that that was now under control and that medication should suffice.

6 The judge then rehearsed very conscientiously the various factors which might impinge on sentence. She took a starting point of 20 years' imprisonment - which we are bound to say for a quantity of 6 kilos of cocaine was unusually low - and then took into account the mitigation, most particularly the applicant's mental condition, and imposed a term of 15 years' imprisonment. The applicant was at the date of sentence aged 34 years, and was treated as having no previous convictions.

7 On 17 July 2000 this Court, differently constituted, granted leave to appeal against conviction but dismissed her appeal.

8 On 6 December 2000, the applicant lodged a notice of application for leave to appeal against sentence out of time. In that application she said that her lawyer had advised her not to appeal against sentence for she faced the danger that the sentence might be increased. But she said she had thought about the matter for a year and had decided to apply anyway because she wanted to be released, and her children needed her.

9 However, by notice dated 21 April 2001, she abandoned that application in relation to sentence so that, by operation of law, that sentence stands dismissed.

10 The current application is dated 31 July 2002. She says that when she abandoned her application she was suffering mental illness and thought that she was not entitled to present her appeal without a lawyer and that she was in a panic. Now, however, she remembers details of her case that she had not recalled before. She now says that because of her mental condition she had not properly instructed her lawyer at trial, and had given wrong explanations at trial.

11 As for her sentence, she says that her children are growing up; that she worries that they may go astray; that her parents are old and that she is the only child willing to look after them. She also says that she is concerned about the current state of her health.

12 This Court has up-to-date medical reports, dated October 2002. They show that her mental condition has been the subject of treatment and that since 1999 she has been seen on an out-patient basis and has been mentally composed, rarely talking of psychotic symptoms, although she still has residual paranoid ideas.

13 She has told us today that there has been prepared a more recent report or reports about her current condition. Her current condition is not a matter for this Court in addressing either the question of abandonment or the question of the appropriateness of her sentence.

14 The applicant has not shown that her decision to abandon the application in April 2001 was a nullity. She was evidently aware of the risk of loss of time about which she had been advised. Given the leniency of the sentence imposed, that advice was not surprising; and the medical reports which we have which deal with the history of her illness do not show that her decision was likely to have been anything other than quite deliberate and informed. Accordingly, her application to treat the abandonment as a nullity is dismissed.

15 We would however add this, that even if it were proper to permit revival of her application for leave to appeal against sentence, there is no merit whatsoever in the complaints against the sentence. It was on any view a very low one indeed. The starting point taken was substantially lower than that normally adopted for quantities found in this case. A starting point, as we have explained to this applicant in the region of 25 years, would not have been unusual; and the discount of five years - from the low starting point of 20 years down to 15 years - might be thought also to have been generous.