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Hksar v Luis Dos Santos

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date12 September 2016
Year2016
Judgement NumberCACC132/2010
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC132/2010 HKSAR v. LUIS DOS SANTOS

CACC 132/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 132 OF 2010

(ON APPEAL FROM HCCC 38 OF 2010)

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BETWEEN
HKSAR Respondent
and
Luis Dos Santos Applicant

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Before: Hon Lunn VP and McWalters JA in Court
Date of Hearing: 2 September 2016
Date of Judgment: 2 September 2016
Date of Reasons for Judgment: 12 September 2016

_________________________

REASONS FOR JUDGMENT

_________________________


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

1. Following his plea of guilty before a magistrate on 5 February 2010, the applicant was convicted of a single count of trafficking in 919.86 grammes of a mixture containing 510.47 grammes of heroin hydrochloride and 137.37 grammes of monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and was committed to the Court of First Instance of the High Court for sentence. On 25 March 2010 he was sentenced by Saw J (“the judge”) to 14 years’ imprisonment.

2. On 13 April 2010, the applicant filed a Notice of Application fo Leave to Appeal in respect of his sentence (Form XI). After being refused legal aid on 3 June 2010 the applicant filed a Notice of Abandonment on 23 August 2010 and his appeal was thereupon marked dismissed.

3. However, on 1 March 2016 the applicant filed an affirmation seeking to treat his previous abandonment as a nullity and to revive his application for leave to appeal against sentence.

4. At the hearing of the application we refused it and said we would hand down our reasons for doing so at a later date. This we now do.

The background to the offence

5. The Summary of Facts admitted by the applicant for the purpose of his sentencing revealed that he arrived at Hong Kong International Airport as an incoming passenger from Nepal on 14 September 2009. He went through the “Nothing-to-declare” channel at Arrival Hall B of the Hong Kong International Airport for customs clearance. The applicant was intercepted by Customs Officers as he looked very nervous. As internal concealment was suspected, the applicant was sent to Queen Elizabeth Hospital for medical examination. At about 1300 hours of the same day, a medical officer at the hospital retrieved a pellet of dangerous drug from the applicant’s anus. The applicant was then arrested and cautioned in response to which he remained silent.

6. Within the next few days, the applicant discharged a total of 66 pellets of dangerous drug. The Government Chemist later confirmed that the retrieved pellets consisted a total of 919.86 grammes of a mixture containing 510.47 grammes of heroin and 137.37 grammes of monoacetylmorphine hydrochloride. The street value of the dangerous drug was assessed as being HK$768,083.10.

7. On 15 September 2009, a record of interview was conducted with the applicant. Under caution, the applicant admitted that he had obtained the pellets from a man called “Onyi” in Nepal, and he had trafficked them to Hong Kong for a promised reward of US$4,000 which he expected to receive on delivery of the dangerous drug to Mirador Mansion, Tsim Sha Tsui.

The mitigation

8. The applicant was 28 years old at the time of his sentence and was originally from Guinea-Bissau, Africa. Mr Chau, counsel for the applicant at the sentencing hearing, explained to the court that the reason for the applicant committing the offence was financial hardship and the need to raise funds to pay for medical treatment for his youngest sister who was suffering from cancer.

9. Mr Chau accepted that for the purpose of sentencing, no distinction should be made between the two salts of esters of morphine and the appropriate approach to sentencing was to add up the quantities of the two salts of esters of morphine and apply the appropriate sentencing guideline from the Court of Appeal to determine the correct starting point. Mr Chau also accepted that the only mitigation in the case was the applicant’s guilty plea at the earliest opportunity.

10. The judge indicated to Mr Chau that he was contemplating a starting point, after enhancement for the international element, of 21 years’ imprisonment. To this indication Mr Chau responded:

“Well, if I can put it this way, I think a starting point of 21 years would be unappealable.”

The Reasons for Sentence

11. The judge considered that for the purpose of sentencing, no distinction should be made between the two salts of esters of morphine, and therefore the quantity of the danergous drug for the purposes of sentencing amounted to 647.84 grammes. The judge noted that the quantity exceeded the cut off point for sentence after trial recommended in R v Lau Tak-ming & others[1] and so he adopted the guidelines set out in HKSAR v Abdallah[2] where it was held that when the amount of heroin was between 600 and 1200 grammes, a starting point range of from 20 to 23 years after trial was appropriate.

12. However, as the quantity of dangerous drug in the present case was just over 600 grammes, the judge considered it unnecessary to adopt a starting point in excess of 20 years but he enhanced the starting point for 1 year to reflect the “international element” in the applicant’s drug trafficking. The judge noted that there was nothing in the circumstances of the commission of the offence which would justify any discount greater than the usual one-third discount. Granting the applicant this discount he reduced the starting point of 21 years by one-third and sentenced the applicant to 14 years’ imprisonment.

The application to treat his abandonment as a nullity

13. In his application for leave to appeal sentence dated 9 April 2010 the applicant referred to his family’s circumstances, namely the deaths of his parents, his youngest sister suffering from cancer and the need for money to finance her treatment. He expressed remorse and complained that some other people who had been arrested for trafficking in a greater quantity of drugs than he, had...

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