HKSAR v. AMARILLA JUAN RAMON

CACC 125/2022

[2024] HKCA 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 125 OF 2022

(ON APPEAL FROM HCCC NO 477 OF 2013)

________________________

________________________

________________

J U D G M E N T

________________

Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant was convicted on his own plea to one count of trafficking in a dangerous drug, namely 5.22 kilogrammes of a solid containing 3.63 kilogrammes of cocaine, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 17 years and 4 months’ imprisonment by Andrew Chan J (“the judge”) on 22 January 2014, more than a decade ago.

2.  After 8 years and 7 months, on 18 August 2022, the applicant filed a Form XI for leave to appeal against his sentence out of time.

3.  On 5 September 2023, a single judge refused the applicant’s application, observing that the applicant appeared to be mentally unwell, but nevertheless noting that he seemed to understand and appreciate the nature and purpose of the proceedings as well as the likely consequences of pursuing an unmeritorious application[1].

4.  On 7 September 2023, the applicant filed a Form XIII to renew his leave application.

The facts

5.  On 3 April 2013, the applicant, who is an Argentinian national, arrived in Hong Kong on an international flight from São Paulo in Brazil via Doha in Qatar. Upon a random search of incoming passengers, Customs officers found concealed in his luggage 5.22 kilogrammes of a solid containing 3.63 kilogrammes of cocaine. At the time, the value of the drugs was estimated to be HK$5,340,060.

Reasons for sentence

6.  The applicant was 47 at the time of sentence in 2014, and had a clear record both in Hong Kong and in Argentina.

7.  The judge adopted a starting point of 25 years and 6 months’ imprisonment, which he enhanced by 2 years for the international element to 27 years and 6 months’ imprisonment. He reduced the notional starting point by 1 year and 6 months to 26 years’ imprisonment for the applicant’s participation in a controlled delivery operation and his willingness to assist the authorities in this way. After giving the applicant a one-third discount for his guilty plea, the judge sentenced him to 17 years and 4 months’ imprisonment.

Grounds of appeal

8.  The applicant has not filed any written submissions in respect of his renewed application. Accordingly, we shall restate the grounds relied upon at the previous leave hearing.

9.  The applicant’s reason for appealing his sentence out of time is that he says he has found physical evidence in his personal property on 10 March 2021, following his return to prison from Siu Lam Psychiatric Centre, which shows Customs officers have made a mistake during the investigation of his case. This evidence consists of a Casino Card Play (issued in Argentina), which he says does not belong to him. He also claims that the injection of eight vaccines caused him to lose weight and suffer dizziness and heart palpitations. Before us today, he claims to be a Government agent, with substantial means, and a “legend” in Argentina.

10.  It is to be noted, however, that no explanation at all has been provided by the applicant for the inordinate delay in filing his application for leave to appeal, nor for how the matters he has mentioned have any bearing on the sentence he received.

The respondent’s submission

11.  The respondent has filed two sets of written submissions[2]. Since the applicant was sentenced more than a decade ago, Mr Daryanani, on behalf of the respondent, has considered whether any of the changes in sentencing practice since his sentence was passed[3] would be of benefit to the applicant. Having conducted the exercise, it is the respondent’s position that the applicant’s appeal against sentence out of time is unmeritorious and the Court has been invited to impose a loss of time order.

12.  Mr Daryanani has also informed the Court that the applicant was not found to be suffering from any psychiatric illness at Siu Lam Psychiatric Centre, on a referral for suspected paranoid ideation on 12 February 2021; there has been no follow-up treatment since then. The respondent submits that there is no reason to believe the applicant has subsequently developed any mental illness.

Discussion

13.  The applicant pleaded guilty to trafficking in a dangerous drug, when capably represented by an experienced counsel, and there are no grounds for impugning his decision to do so. We make that observation because it is not entirely clear whether the applicant’s grounds of appeal are directed at conviction or sentence.

14.  The original starting point for sentence was within the acceptable range set out in the relevant guidelines in HKSAR v Abdallah[4]. In fact, the starting point adopted was one month lower than it could have been under the guidelines, if one were to view it on a strictly arithmetical basis.

15.  As for the enhancement of that starting point by 2 years’ imprisonment for bringing no less than 3.63 kilogrammes of cocaine narcotic across the border into Hong Kong from Brazil, there was nothing exceptional about such an increase for the international element, whether it is viewed as an aggravating factor going to enhance the starting point (under Abdallah), or as an aggravating feature of his role and culpability (under Lee Ming Ho).

16.  The discount for plea was unexceptional, as was the further discount for the applicant’s cooperation and participation in an unsuccessful controlled delivery. The overall discount for plea and participation in such a controlled delivery was some 37%, which was also within the appropriate range.

17.  Accordingly, the sentence of 17 years and 4 months’ imprisonment passed by the judge was, on authority and under the guidelines, unimpeachable.

18.  The application before us, which is a renewed application for leave to appeal against sentence out of time by several years, for which the applicant has never offered any explanation, let alone a plausible one, for the delay, is wholly without merit. Accordingly, the application is refused, and the appeal dismissed.

19.  Having heard the applicant, we decline to order loss of time and will leave the matter there.

Mr Prakash L Daryanani, SPP of Department of Justice, for the Respondent

The Applicant appeared in person