HKSAR v. SITOE CLAUDIO MARCELINO

CACC 363/2018

[2019] HKCA 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 363 OF 2018

(ON APPEAL FROM DCCC NO 407 OF 2018)

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J U D G M E N T

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1.  The applicant applies for leave to appeal his sentence of 2 years and 4 months’ imprisonment, following his plea of guilty to trafficking in a dangerous drug, namely 8.18 kilogrammes of cannabis in herbal form. The value of the drugs at the time of the offence was $2,265,860.

2.  The applicant has been refused legal aid, and appears in person.

3.  The judge imposed a starting point of 3 years and 8 months’ imprisonment which he reduced by 8 months to 3 years’ imprisonment because the cannabis was in herbal form.  He enhanced the sentence by 3 months for the international element, as the applicant had collected a parcel containing the drugs that had been sent from Johannesburg, South Africa.  He further enhanced the sentence by 6 months for the fact that the applicant was at the time of the offence a Form 8 recognizance holder.  The judge reduced the starting point of 3 years and 9 months’ imprisonment by one third for the applicant’s guilty plea to 2 years and 6 months’ imprisonment.  He gave a further reduction of 2 months to his sentence for the assistance he rendered the authorities at the time of his arrest.  He also activated a suspended sentence of 2 weeks’ imprisonment for breach of condition of stay.  The resultant sentence was 2 years, 4 months and 2 weeks’ imprisonment.

4.  The applicant makes a series of complaints about his sentence which can be appropriately summarised as follows. 

5.  First, he complains that the starting point was too high and the judge should have reduced it by more than 8 months, in allowing for the fact that the cannabis was in herbal form rather than resin.  He submits the judge should have reduced it by 12 months.  The reduction given by the judge was appropriate and in accordance with the authorities of Attorney General v Tuen Shui Ming and Another [1995] 2 HKCLR 129 and HKSAR v Kwang Sau Fan and Another [2002] 4 HKC 184.  There is no substance to this complaint.

6.  Secondly, he complains that he should not have been given an enhancement for the international element because he was only collecting a parcel at the request of his friend and as a Form 8 recognizance holder he could not be the owner of the cannabis.  This was rejected by the judge and rightly so.  The enhancement of 3 months was completely justified in the circumstances of the case.

7.  Thirdly, he complains that the judge should have given him a greater reduction for the assistance he rendered to the Customs and Excise Department. He submits that he cooperated with the Customs officers and provided to them the name and particulars of the person who he claimed arranged for him to collect the parcel.  The judge took into account the assistance that he rendered to the Customs and Excise Department and applied the relevant authorities in reducing the nominal sentence of 2 years and 6 months by 2 months to 2 years and 4 months, which was the equivalent of a discount of 37.7% (including the one third discount for his plea of guilty) to the starting point of 3 years and 9 months’ imprisonment.  The discount was in line with the relevant authorities.

8.  The judge in his reasons for sentence comprehensively dealt with all the matters in relation to which the applicant now complains.  There is no basis for any complaint about the judge’s handling of the matters that the applicant now raises or about the ultimate sentence that was imposed upon him.

9.  The applicant also requests for the return of his two mobile telephones which were used during the commission of the offence and seized by the police. No objection was raised when these two exhibits were confiscated pursuant to a court order, and in any event there is no basis for their return as they were used in connection with the commission of this offence.

10.  The complaints are without merit and the application for leave to appeal against sentence is refused.

11.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.