HKSAR v Londono Montealegre Maritza Yaneth
Court of Appeal
Criminal Appeal No. 80 of 2016
Lunn V-P and McWalters JA
29 November 2016

Enhancement of sentence – reasons for not enhancing sentence, which would normally be enhanced due to presence of aggravating factor, should be given

The indictment contained two counts of unlawful trafficking in dangerous drugs. Count 1 was against the applicant (“D”) and her co-defendant. The co-defendant alone faced Count 2. Under Count 1, D pleaded guilty to trafficking in dangerous drugs, namely 303 g of cocaine, and received a sentence of nine years and four months’ imprisonment arrived at as follows. A starting point of 13 ½ years’ imprisonment was adopted. It was reduced by way of a one-third discount for D’s guilty plea to nine years’ imprisonment. That was enhanced by six months to reflect the fact that at the time of the offence D, who held a Colombian passport, also held a recognizance (commonly known as a “Form 8”) issued by the Immigration Department to persons who would otherwise be detained pending resolution of a claim to be allowed to remain in Hong Kong. Such enhancement was then reduced to four months to reflect D’s guilty plea. D applied for leave to appeal against sentence.

Held, dismissing the application, that:

  • The starting point was correct. It might well be that D’s co-defendant was making use of her. But she had played a role in their joint enterprise. And the co-defendant’s greater role in drug trafficking was reflected in the additional punishment imposed on him on the count which he faced alone.
  • D having taken advantage of the hospitality and freedom that Hong Kong extended to her, the enhancement, too, was correct. That other judges might not have always ordered enhancement in circumstances of this type was irrelevant to whether the Judge was entitled to enhance this sentence.
  • In the three cases referred to by D as ones in which the sentences were not enhanced despite circumstances which would have warranted enhancement, no reasons for not ordering enhancement had been given. A sentencing judge who decided not to enhance a sentence despite the presence of an aggravating factor in the circumstances of the offence or the offender should advert to the presence of that factor and explain why she or he was nevertheless not going to enhance the sentence.

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