HKSAR v. BOTERO RUIZ CONDE EDGAR

IN THE COURT OF APPEAL

1997, No. 20

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant seeks leave to appeal out of time against the sentence of 21 years 2 months' imprisonment imposed upon him when he was found guilty after a trial before Deputy Judge Wong of trafficking in a large quantity of cocaine. The sentence of two months' imprisonment related to his pleading guilty to being in possession of a forged travel document.

2. The first issue which has to be considered is whether leave to appeal out of time should be granted. No explanation why the application was not made timeously is included in the papers which were before us.

3. However Mr Mitchell-Heggs who represents the applicant informed us that the applicant was in a state of shock after the sentence was imposed upon him and thereafter encountered difficulties in communication as a result of this inability to speak either English or Chinese.

4. So far as the merits of the application are concerned the grounds which are advanced in the perfected grounds all relate to the personal circumstances of the applicant.

5. So far as the offence itself is concerned the narcotic content of the mixture which was found on the applicant amounted to 1880.68 grams of cocaine hydrochloride which amount is very slightly in excess of 3 times what is described in Lau Tak-ming as a "very large quantity of dangerous drugs such as to require a sentence of upwards of 20 years' imprisonment."

6. In the perfected grounds reference is made to the applicant's age and poor health. He was aged 61 at the time of the offence. Mr Mitchell-Heggs points out that a sentence of 21 years' imprisonment in such circumstances amounts to a sentence of life imprisonment. He also refers to the fact that the sentence has to be served in what for the applicant is a foreign country and that his inability to speak either English or Chinese renders the imprisonment much more burdensome than would otherwise be the case.

7. In this connection although this is a factor which should have been weighed by the judge we do not think that it would have materially affected the sentence imposed.

8. While we have human sympathy for the situation which faces the applicant none of the matters raised by him would enable us to interfere with the sentences which were imposed.

9. The sentences were neither wrong in principle nor manifestly excessive.

10. However we do consider that we are able to order that the sentences should be served concurrently.

11. Treating the application as the appeal we reduce the total sentence to be served to be a sentence of 21 years' imprisonment. To that extent this appeal is allowed.