HKSAR v. IRENE BURNALES MANALO

CACC 94/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 94 OF 2000

(ON APPEAL FROM HCCC NO. 315 OF 1999)

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J U D G M E N T

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1. I refuse the Applicant leave to appeal against her conviction. It is plain to me, on what she herself has told me today, that she voluntarily, albeit reluctantly, pleaded guilty following advice from her counsel that (a) she was likely to be convicted if her confession to the police was held to be voluntary, and that (b) what she had to decide was whether to plead not guilty and run the real risk of conviction, or to plead guilty and to receive the substantial discount on her sentence which a plea of guilty attracts. She accepts that her counsel told her that pleas of guilty do attract shorter sentences, and that a plea of guilty by her in this case would result in a sentence of 6 to 8 years' imprisonment or even less.

2. However, I grant the Applicant leave to appeal against her sentence. It looks as if the judge decided on a starting point of 9 years' imprisonment by taking into account only the amount of ice involved, and that he selected his starting point by a mathematical and mechanical application of the tariff. In my opinion, it is arguable that in deciding on his starting point the judge did not take into account the degree of the Applicant's involvement in the drugs trade. On her version of events (which the prosecution was not in a position to challenge), she was simply a courier taking the ice from one point of the chain of distribution to another. The degree of an offender's involvement in the drugs trade was a factor which the Court of Appeal in Lau Tak Ming said should be taken into account in deciding where within a suggested band a sentence should be. Although Lau Tak Ming involved tariffs for trafficking in heroin, it is at the very least arguable that the factors enumerated in Lau Tak Ming should apply to tariffs for trafficking in other forms of hard drugs.