HKSAR v. DE VILLIERS BELINDA DEBBIE

CACC 412/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 412 OF 2012

(ON APPEAL FROM HCCC 82 OF 2012)

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Hon Lunn JA (giving the judgment of the Court) :

1.  The applicant, a 46-year-old national of South Africa, seeks leave to appeal out of time against a sentence of 12 years and four months’ imprisonment imposed upon her by Saw J on 2 May 2012. That sentence was imposed by Saw J, before whom she appeared having been committed for sentence, following her plea of guilty in the Magistracy on 2 March 2012 to a single charge of unlawful trafficking in a dangerous drug on 4 August 2011, namely 370 grammes of heroin hydrochloride and 150 grammes of monoacetylmorphine, contrary to section 4(1)(a) and (3) of the Dangerous Drug Ordinance, Cap. 134.

THE FACTS

2.  The applicant was detained at Hong Kong International Airport on 4 August 2011, following her arrival from Kuala Lumpur.  Although a search of her luggage revealed nothing untoward, she was taken to Queen Elizabeth Hospital so that she could be examined internally.  An X-ray examination revealed the presence of foreign objects inside her body.  Over a period of time she discharged 100 pellets, which on analysis were found to contain the dangerous drugs the subject of the charge.  The retail value of those dangerous drugs at that time was about $530,000.

REASONS FOR SENTENCE

3.  In his reasons for sentence, the judge stated that having regard to the quantity of the dangerous drugs in which the applicant unlawfully trafficked, in light of the guidelines provided for by the judgment of this court in R v Lau Tak Ming [1990] 2 HKLR 370, the appropriate starting point for sentence after trial was 18 years’ imprisonment.  The judge said that he enhanced the sentence of 18 years’ imprisonment by six months’ imprisonment, to reflect the international component in the applicant’s unlawful trafficking.

Discount

4.  The judge stated that he afforded the applicant a discount of one third for her plea of guilty.

Sentence

5.  In the result, the judge imposed a sentence of 12 years and four months’ imprisonment on the applicant.

GROUNDS OF APPEAL AGAINST SENTENCE

Application out of time

6.  The only explanation that the applicant offered for the fact that her application for leave to appeal against sentence, which was filed on 17 October 2012, was more than four months out of time is that initially she was scared to mount the application.

Grounds of appeal

7.  The crux of the applicant’s complaint in respect of sentence is that, in determining the appropriate sentence, the judge took into account dangerous drugs that had been found other than inside the applicant.  In particular, 15 milligrammes of morphine tablets found in a suitcase, with which she was travelling.  It was not her suitcase and the morphine tablets were not hers, nor did she know of them.

Discussion

8.  It is apparent that the applicant is mistaken in her understanding as to the dangerous drugs taken into account the purposes of the judge determining sentence.  All of the dangerous drugs stipulated in the Particulars of Offence of the Charge had been discharged by the applicant.

9.  Given that the guidelines articulated in Lau Tak Ming identified the band of 400 to 600 grammes of heroin as falling within the range of 16 to 20 years’ imprisonment, it is clear that in identifying a starting point of 18 years’ imprisonment for unlawfully trafficking in 520 grammes of the narcotic the judge was being consistent with and faithful to those guidelines.  As the judge noted in an interchange with counsel during mitigation, the aggravating feature of an international component to the unlawful trafficking was a matter to which the judgment in Lau Tak Ming adverted, as did more recent authorities.  The enhancement for that factor of six months’ imprisonment to the 18 years’ imprisonment stipulated by the judge was entirely appropriate.

Conclusion

10.  Had there been any merit in the application for leave to appeal against sentence we would have been minded to allow the application for leave to appeal out of time.  However, there is no such merit.  Accordingly, in the circumstances the application for leave to appeal against sentence out of time is refused.