HKSAR v. HENAO TORRES OSCAR OSWALDO

CAC C 428/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 428 OF 2012

(ON APPEAL FROM HCCC NO. 49 OF 2012)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  On 10 October 2012, the applicant (Henao Torres Oscar Oswaldo) was convicted by the jury of one count of trafficking in 608.76 grammes of cocaine and was sentenced to 20 years and 3 months’ imprisonment.  On 14 June 2013, his application for leave to appeal against conviction was dismissed by the Court of Appeal and the reasons for judgment were handed down on 24 June 2013.

2.  The applicant further applied for leave to appeal to the Court of Final Appeal, but his application was dismissed by the Appeal committee under Rule 7 of the Hong Kong Court of Final Appeal Rules on 19 May 2014 (FAMC No.4 of 2014).

3.  By a Notice of Motion dated 4 October 2016, the applicant purported to apply for a certificate under s.32 of the Hong Kong Court of Final Appeal Ordinance that a point of law of great and general importance is involved in this case.  The questions of law said to be of great and general importance are as follows:

(1)   There is a perverse view from the jury against the applicant;

(2)   The applicant did not know about the drugs inside the suitcase;

(3)   The destination of the applicant is Guangzhou in China and not Hong Kong city (For business);

(4)   The applicant is legitimate merchant; and

(5)   Substantial injustice has been done.

4.  Questions (1) to (4) are fact-sensitive.  The jury was entitled to reject the applicant’s explanation and convict him as charged.  Question (5) is not a matter concerning this Court.

5.  Quite apart from the substantial and inordinate delay of over 40 months that the applicant attributes to the time he needed to prepare his case as well as possible, there are no merits in the application.  The application for a certificate is therefore dismissed.