HKSAR v. VHEMY AXEL-SUPARDI
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CACC000012/2000
CACC 12/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 12 OF 2000
(ON APPEAL FROM HCCC 323/1999)
__________________
| BETWEEN | ||
| HKSAR | Respondent | |
| AND | ||
| VHEMY AXEL-SUPARDI | Applicant |
______________________
Coram: Hon Mayo VP, Leong JA and Ribeiro JA in Court
Date of Hearing: 26 May 2000
Date of
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J U D G M E N T
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Hon Leong JA (giving the
1. On 24 May 1999, Customs and Excise officers on duty at the Kowloon Railway Station at Hung Hom saw the applicant loitering and looking nervous in the arrival hall. They stopped and searched the applicant and found on him five bags containing what was subsequently proved to be 2,097.18 grammes of
2. The applicant was subsequently charged in the Court of First Instance in the High Court with one count of trafficking in a dangerous drug, namely 2,097.18 grammes of
3. The Judge took a staring point of around 24 years and after taking into account of his plea and everything that was submitted on his behalf in mitigation reduced the sentence to one of 15 years and that was the sentence imposed on the applicant.
4. The applicant now seeks
1. The
starting point of "around 24 years" is too high. The actual sentence of 15 years ismanifestly excessive and wrong in principle in the circumstances of thecase .2. The sentence has not taken into consideration the "foreignness" of the applicant.
5. On the first ground, Mr Polson
6. On the second ground Mr Polson also relied on R v Mohamed Yaqoob. He
7. In our view, the applicant was a
8. In AG v Pedro Nel Rojas [1994] 1 HKC 342, Silke VP had this to say in respect of the "foreignness" element in sentencing a foreign defendant:
"In this case, the judge allowed a specific discount of one year for what we might term generally 'the foreignness' of the respondent. We do not consider that a specific discount should be given for this aspect of
mitigation but we do endorse the course adopted in R v Shipra, which was commended to judges when faced with problems of this kind in the future - that while it is a factor to be taken into consideration, it is not one which would affect sentence to any substantial degree. This is something to be considered in determining the totality of the sentence."
9. The Judge, in our view, in arriving at the sentence of 15 years imprisonment that was imposed on the applicant had discounted 9 years from the
10. There is nothing wrong in principle in the
| (Simon Mayo) | (Arthur Leong) | (R A V Ribeiro) |
Representation:
Miss Winsome Chan, SGC, of the Department of Justice, for the respondent
Mr Ian Polson, instructed by the Legal Aid Department for the applicant