HKSAR v. ALPIRE CABRAL DAYANNA ESMERALDA

CACC 11/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.11 OF 2004

(ON APPEAL FROM HCCC NO. 282 OF 2003)

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J U D G M E N T

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Hon Hartmann J (giving the judgment of the Court) :

1. The applicant pleaded guilty at her committal in the magistracy to one count of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. She was committed to the Court of First Instance for sentence where Deputy Judge Longley sentenced her to 12 years imprisonment. She now applies for leave to appeal against that sentence.

2. The applicant, who at the time of the commission of her offence was 28 years old, is a native of Bolivia. She speaks Spanish only.

3. On 19 June 2003, the applicant and her husband arrived in Hong Kong on a flight from Toyko. They were stopped by customs officers. An examination of both the applicant and her husband was conducted at the Queen Elizabeth Hospital. The applicant was found to have secreted in her body a total of 933.11 grammes of cocaine containing 711.29 grammes of narcotic. Her husband was also found to have secreted cocaine in his body. In his case the total of narcotics was 294.90 grammes. When interviewed under caution the applicant admitted that she and her husband had come to Hong Kong as drug couriers.

4. The sentencing guidelines laid down by this Court in R v. Lau Tak Ming and Yeung Wai Shing & Others [1990] 2 HKLR 370 indicate that, in respect of narcotics exceeding 600 grammes, a sentence of 20 years or more may be appropriate. However, in sentencing the applicant, the judge took as his starting point a total of 18 years only, reducing that to 12 years in light of the applicant's plea of guilty.

5. In adopting what was, in our view, a very lenient starting point of 18 years, the judge took into account the personal circumstances of the applicant particularly those relating to her immediate family. In this regard, he said :

" I have taken into account the fact that you are a mother of four young children and that the sentence of this court will, effectively, deprive them of your love and care throughout the majority of their youth and childhood. I have also borne in mind the fact that, as you are detained in Hong Kong, it will probably deprive you of the opportunity of receiving visits from them."

6. The applicant seeks a further reduction of the sentence imposed upon her on the basis that, as her husband is also serving a term of imprisonment here, her father in Bolivia must care for her four children and is having difficulty in coping. She also seeks a reduction on the basis that, as a stranger to Hong Kong, one who speaks only Spanish, her imprisonment is bearing more harshly on her than it would on a local person.

7. As to the difficulties that are no doubt being experienced by the applicant's father in raising her children, it is well-established that family circumstances can play virtually no part in mitigation of drug trafficking offences. In R v. Hung Mau Sing (unreported) CA 476/1989, this Court observed that this was so because

"were it otherwise it would encourage persons in the drug trade to take advantage thereof and partly because the effect upon his family must be obvious to the man in question before he agrees to embark upon such conduct."

8. In our view, the sentencing judge gave as much consideration to the distressing circumstances of the applicant's children as the justice of the matter allowed.

9. We turn to the difficulties being experienced by the applicant because she is a stranger to Hong Kong who speaks neither English nor a Chinese language. Since this court's judgment in HKSAR v. Hong Chang Chi [2002] 1 HKC 295, it is well-settled that, while such difficulties are a factor to be taken into consideration, they are not a factor which should affect sentence to any substantial degree. Nor are they a factor in respect of which a specific discount should be given. In our view, in imposing the sentence he did, the judge gave more than due allowance for the applicant's personal circumstances, taking into account the fact that she would have to serve her sentence outside of her native environment.

10. In the circumstances, the application for leave to appeal against sentence is dismissed.