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CACC 386/2015
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COURT OF APPEAL
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HKSAR
Respondent
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BONIFACIO GOMES
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Applicant
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JUDGMENT
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The applicant seeks leave out of time to appeal against the sentence of 14
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years and 8 months imprisonment imposed on him on 11 August 2011 by Line J in the
Court of First Instance, following his committal for sentence to the court on his plea
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guilty in the Magistracy on 27 May 2011 to a single count of trafficking unlawfully in a
dangerous drug, namely 0.85 kilogramme of cocaine, contrary to section 4(1)(a) and (3)
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The applicants Notice of Application, Form XI, was filed with the court
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6 November 2015. It follows that his application was made almost 4 years and
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months out of time.
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The facts
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the Hong Kong International Airport via Addis Ababa. Having been intercepted on
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suspicion of having concealed dangerous drugs inside his body, the applicant was sent to
Queen Elizabeth Hospital where, on 14 November 2010, he discharged 63 pellets. They
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were found to contain the cocaine the subject of the charge.
applicant admitted that he had swallowed the pellets knowing them to contain dangerous
drugs. Further, he knew that it was illegal to bring them into Hong Kong.
In his reasons for sentence, the judge said that the 850 grammes of cocaine
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in which the applicant had trafficked unlawfully fell roughly in the middle of the bracket
of 600 to 1,200 grammes of cocaine, for which the appropriate range of sentence was 20
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to 23 years imprisonment.
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sentence, to which he said he added one years imprisonment to reflect the international
aspect in the commission of the offence. Having afforded the applicant a discount
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one-third to reflect his plea of guilty in the Magistracy, the judge sentenced the applicant
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Reasons for filing the Notice of Application for leave to appeal against sentence out of
time and grounds of appeal
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In Form XI, and in his affirmation of the same date, namely 6 November
2015, the applicant contended that the reason he had filed his Notice of ApplicationI for
leave to appeal against sentence out of time was that there had been a change of
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circumstances, namely that he had come to learn that in another case, HCCC 89/20131,
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in which the defendant had been sentenced for unlawfully trafficking in a greater
amount of dangerous drugs than in his own case, nevertheless a lesser sentence of
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In a letter to the Court dated 4 March 2016, the applicant submitted that the
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judge had erred in stipulating a starting point for sentence of 22 years imprisonment. In
support of that submission, he referred to the judgment of this Court in HKSAR
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Jocelyn Sanchez Badua.2 Further, he asserted that the amount of cocaine in which the
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respondent that the applicant had not advanced any grounds to explain the substantial 4year delay in giving notice of the application for leave to appeal against sentence. D He
drew the attention of the Court to the judgments of this Court in HKSAR v Oh Chun Kit 3
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and in R v Wong Kai Kong 4 as relevant to the Courts consideration of the application for
leave to appeal out of time. He submitted that before the Court could grant suchF an
indulgence, substantial grounds must be shown for the delay and that the longer the
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delay, the more onerous is the duty of the person making the application.
Sentencing guidelines
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Mr Leung reminded the Court that the judgment of this Court in Attorney
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General v Rojas stated that the sentencing guidelines for trafficking unlawfully in
heroin were applicable to cocaine.
cases of unlawful trafficking in heroin for amounts greater than 600 grammes, in
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particular it stipulated that unlawful trafficking in the bracket of 600 to 1,200 grammes
of heroin fell in a range of sentence of 20-23 years imprisonment. He said that, having
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imprisonment stipulated by the judge was clearly within the appropriate range.
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Court in HKSAR v Jocelyn Sanchez Badua was misplaced. It preceded the guidelines
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for sentence articulated in the judgment of this Court in HKSAR v Abdallah and was not
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relevant. Mr Leung submitted that the lesser sentence imposed on the defendant in
HKSAR v Lizarazo Salazar Juan Pablo fell within the appropriate range of sentence
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available to the judge. That defendant trafficked unlawfully in 830 grammes of cocaine,
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not 860 grammes as asserted by the applicant, a lesser amount than that in which the
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applicant trafficked. The same judge, Line J, stipulated a starting point for sentence
aggravating factor in the commission of the offence, namely the importation of the
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application for leave to appeal against sentence represents a very substantial delay.K He
has advanced no acceptable reasons for the delay. In those circumstances, we would
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refuse him leave to appeal out of time. However, we have also considered the merits of
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his application. There are none. The sentence imposed on the applicant was squarely
within the range of sentence that lay within the discretion of the judge in applying the
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by the judge and the enhancement of one years imprisonment for the aggravating factor
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of importing the dangerous drugs into Hong Kong were entirely appropriate, as was the
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discount of one-third afforded to the applicant from the resulting enhanced starting point
Conclusion
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For the reasons we have given, we refuse the application for leave to appeal
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(Michael Lunn)
Vice President
(Ian McWalters)
Justice of Appeal
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