HKSAR v. URREA DE LOPEZ MAGDALENA CIELO

CACC 97/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 97 OF 2013

(ON APPEAL FROM HCCC 472 OF 2012)

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REASONS FOR JUDGMENT

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Hon Chu JA (giving the reasons for judgment of the court):

1.  On 14 December 2012, the applicant pleaded guilty in Eastern Magistracy to one count of trafficking in a dangerous drug, namely, 0.9 kilogramme of a solid containing 0.68 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, Laws of Hong Kong.  She was committed to the Court of First Instance for sentence.

2.  On 26 February 2013, Deputy High Court Judge Geiser (“the Judge”) sentenced the applicant to 14 years and 4 months’ imprisonment.

3.  The applicant seeks leave to appeal against the sentence. We dismissed the application. This is our reasons.

4.  The facts admitted by the applicant show that on 10 June 2012, the applicant arrived in Hong Kong from Bogota, Colombia via Sao Paulo, Brazil and Doha, Qatar. She was intercepted by customs officers at the arrival hall of the Hong Kong International Airport.  She was suspected of concealing drugs inside her body and taken to the hospital. Subsequently, the applicant excreted a total of 91 pellets of dangerous drugs, which form the subject matter of the charge against her.  The retail market value of the drugs was HK$ 900,000.

5.  The applicant is a Colombian national. She is 58 years old.  She has four grown-up children.  She became separated from her husband in 1999.  She worked as a domestic helper in Colombia.  In mitigation, it was said that she committed the offence due to financial difficulties caused by the medical expenses of her mother and brother, who unfortunately passed away in 2010 and 2009 respectively.  She also has to take care of her brother’s two children. The applicant’s children have their own families and cannot afford to render financial assistance to her. The applicant came to know a financial benefactor to whom she eventually became indebted.  She was offered a reward of US$10,000 for carrying the drugs into Hong Kong so as to pay off the debt.

6.  In passing sentence, the Judge referred to the guidelines in HKSAR v. Abdallah [2009] 2 HKLRD 437 and adopted a starting point of 20 years and 6 months.  Having regard to the fact that the applicant was importing drugs into Hong Kong, which is an aggravating factor, he enhanced the starting point by 12 months, bringing it to 21 years and 6 months.  He gave the applicant a one-third discount on account of her guilty plea and arrived at the sentence of 14 years and 4 months.

7.  The applicant is unrepresented.  In her Notice of Application for leave to appeal, she said that the sentence was too long. She explained she committed the offence in order to pay off her debts. She said she would like to help her children to raise the grandchildren and she did not want to be away from her home and family.  She further set out her submissions in a letter dated 5 August 2013.  It was written in Spanish and the Court had arranged for an English translation to be prepared.  The applicant raised the following matters in her letter: (1) She believes she is not going to see her family again because of her age and poor health. (2) As a foreigner who only speaks Spanish, she has not been able to communicate with others while in custody. (3) She committed the offence out of desperation and financial needs. At the hearing, the applicant reiterated she did not think of the consequences before and she has no intention of hurting her family and the Hong Kong community. She apologized for what she had done.               

8.  In HKSAR v. Abdallah, the Court of Appeal has laid down the guidelines for trafficking in cocaine. For a quantity of 600 to 1000 grammes of cocaine, the starting point in sentencing is between 20 and 23 years of imprisonment. Given that the quantity of drugs in this case is 680 grammes, the starting point of 20 years and 6 months adopted by the Judge is within the permissible range.

9.  The enhancement of the starting point by 12 months by reason of the international element is also in accordance with well-established legal principles: see HKSAR v. Abdallah at paras. 42 and 43; HKSAR v. da Silva [2010] 5 HKLRD 576; and HKSAR v. Makbul Shajar Shariff Abubakar Abdalla (unreported) CACC 6/2012.

10.  The several matters urged by the applicant, namely, her financial difficulties, her health condition, her status as a foreigner and the hardship arising from the fact that she has to serve a lengthy sentence in a foreign land, away from her family are not grounds that can support a reduction of the sentence, as reflected in the authorities cited by Miss Fan who appeared for the respondent: HKSAR v. Dewi Kartika Sari Binti Musli (unreported) CACC 101/2012; HKSAR v. Manzanares Zegarra De Varges Norma (unreported) CACC 238/2012 at paras.14-16; HKSAR v. Hong Chang Chi [2002] 1 HKLRD 486 and HKSAR v. Riziki Riziki Hamduni (unreported) CACC 326/2009.   

11.  The applicant asks this Court to have regard to the sentence received by the 3^rd applicant in HKSAR v. Heric Rivas & Others (unreported) HCCC 191/2012.  The 3^rd applicant in that case pleaded guilty to one count of trafficking in 4.51 kilogrammes of cocaine and another count of trafficking in 40.11 kilogrammes of cocaine.  The trial judge adopted 26 years and 30 years as the respective starting point for the two charges and enhanced each of them by one year to reflect the international aspect of the case.  Applying the one-third discount for her guilty plea, the sentence for the two charges became 18 years and 20 years and 8 months respectively. The trial judge however took the view that the two offences represented a continuous course of criminal conduct and ordered the sentences to run concurrently. The total sentence received by the 3^rd applicant was therefore 20 years and 8 months. Comparing the quantity of drugs in the two cases, the applicant complained there is a disparity between the sentence received by her and that of the 3^rd applicant. In our view, the two cases are not comparable in that the 3^rd applicant in HKSAR v. Heric Rivas was given a concurrent sentence for the two charges.  Further, as this court observed in HKSAR v. de Silva at para.9, disproportionality between the quantities of drugs involved and the sentences imposed on defendants in other cases for similar offences, in principle, cannot be a valid cause of complaint. The real question is whether the sentence imposed on the applicant is proper. 

12.  For the reasons stated above, we are of the view that the sentence passed by the Judge in this case is neither wrong in principle nor manifestly excessive.  While we accept that 14 years and 4 months is a lengthy sentence, we do not see any proper basis for disturbing the sentence.

13.  We accordingly dismissed the application.