HKSAR v. Abdallah Tatu Said

HCCC 539/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 539 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty to an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. This plea was entered in the Magistrates Court on 19 December 2014. As a result of your plea of guilty, you have been committed to the High Court for sentence.

The total amount of drugs in terms of purity was 545.78 grammes of heroin hydrochloride and 94.40 grammes of 6-monoacetylmorphine hydrochloride. It is clear that the drugs 6-monoacetylmorphine has the same potency as heroin hydrochloride in narcotic properties and therefore the total purity of drugs, in this case is 640.18 grammes.

On 27 April 2014, you arrived in Hong Kong from Nairobi, Kenya via Doha, Qatar. You were refused permission to land in Hong Kong and you were sent for a baggage examination and a personal search. However, there was no irregularity revealed.

On 28 April, that is the following day, you were sent to the Queen Elizabeth Hospital as you were suspected to have concealed drugs in your body internally. No X-ray examination was conducted upon you as you were suspected to be pregnant. Whilst in the Accident & Emergency ward, under medical observation you discharged one pellet of dangerous drugs in the toilet. You were arrested and under caution you were asked what the substances were. You remained silent. You were asked how many pellets you had swallowed and you replied you did not know. You said that a man in Tanzania had given it to you.

In the following days between 28 April and 5 May, you discharged a total of 80 pellets of the drugs whilst at the hospital. A record of interview was taken from you and you remained silent.

The estimated retail value of drugs at the time of seizure was $525,713.26.

Your solicitor, Mr Jonathan Midgley, in his usual eloquence and persuasiveness has mitigated fully and thoroughly on your behalf:-

You are 32 years of age, are a widow and have no children. You were a self-employed hair salon operator back in Tanzania.

A medical report from the medical officer of Lo Wu Correctional Institution has been submitted dated 6 March 2015, informing me that you are an HIV carrier on anti-viral treatment. In the report, the doctor says you have been regularly followed up at Kowloon Bay Integrated Treatment Centre with interval blood tests. During your stay in Hong Kong, you were newly diagnosed with hypertension and have been put on oral anti-hypertension medication. The doctor concludes in his opinion “Otherwise her general health condition has been all along satisfactory, with good compliance to medications occasional minor ailments have been managed accordingly”.

Mr Midgley has informed me of your very sad and difficult background. You only learnt that you had been infected by Aids after your husband’s death and it is believed it was him who had transferred this to you about 10 years ago. You have attempted to have children on two occasions, you have not been successful, one was stillborn and the other was a miscarriage.

You have no parents and are the eldest of eight siblings whom you also have had to bear the responsibility to look after. You were earning approximately $5,000 a month in Tanzania, however, in view of the abject povertyyourfighting to survive, you succumbed to the attractive extra money that was offered to you to traffic in these drugs. You were to be paid US$6,500 for this trip and therefore you swallowed the drugs in question.

Mr Midgley has urged upon this court to find there are exceptional circumstances in your case to start with the lower starting point when sentencing you. He had urged this court to act with mercy or humanitarian reasons to find that in view of your circumstances in Africa and the very sad background that you should be given credit for this.

The courts are well aware that people from, particularly Tanzania recently before the courts, have had very difficult backgrounds and for that reason have committed this offence to earn quick, easy money. For the courts to give any credit or find there are exceptional circumstances, they must be very exceptional.

I have been referred to a case, HKSAR v Daresa Mariam Guma CACC155/2012, a Court of Appeal decision handed down in October 2012. That case was almost similar on all fours with your present case in terms of the swallowing or concealment of the drugs inside the body, the amount of drugs, the defendant being a Tanzanian female and the value of the drugs. In that case, she appealed her sentence to seek a reduction of the term imposed upon her. The basis of her claim for mercy was that she was a widow with four children to support and elderly parents who were in ill health and immobile. She was responsible for their welfare and medical expenses. She also based her appeal on her own ill health, she said she was suffering from kidney problems which caused her to have swollen legs and limit her movement and her health was deteriorating day by day.

The Court of Appeal went on to discuss at paragraph 8 her circumstances. The court said:-

“As the applicant is from another country, it is not possible to verify the facts upon which she bases her application for leave to appeal the sentence. Nevertheless, for the purpose of determining her application for leave to appeal, we shall assume the facts as stated by her to be correct. Unfortunately those facts are by no means unique for persons in the applicant’s position. It is notorious that persons from an impoverished background in third world countries are frequently employed by drug traffickers as drug couriers and drug mules to transport drugs from one country to another. The persons most readily tempted by this kind of crime are precisely persons such as this applicant who have come from desperate circumstances and so are more likely to be more willing to assume the risks attendant upon international drug trafficking. It is for this very reason that the court will not be swayed by the plight of the trafficker.”

At paragraph 11, the Court goes on to say:-

“It is of course harder for the courts to ignore the suffering of innocent third persons who might be affected by the long period of imprisonment imposed upon the drug trafficker but this suffering is not visited upon them by the drug trafficker who succumbs to the lure of easy money. The court cannot allow the impact upon the third parties to influence it into imposing a sentence less than that which is otherwise appropriate for the crime that is being committed.”

At paragraph 12, the court went on to say:-

“As for the applicant’s medical condition, the law is well settled that ill health is not a basis for reducing an otherwise proper sentence. All of her medical problems can be properly attended to by the prison authorities and she will receive whatever treatment she may need within the prison system.”

In this case, defendant, I am aware that you have Aids and I am informed through this medical report that you are receiving medical treatment regularly and the authorities and the system provides you with the medical treatment you require.

I am bound by the higher court’s authorities and agree with the views reflected therein. In the circumstances, defendant, I have considered all that Mr Midgley has said but I do not find anything in the mitigation which should lessen the otherwise appropriate sentence.

Defendant, you are of clear record. You trafficked in 640.18 grammes of heroin. According to the guideline set down in Abdallah Anwar Abbas, the guideline starting points for traffickers after trial between 600 to 1,200 grammes is a term of between 20 to 23 years’ imprisonment.

Defendant, given the quantity of drugs that you had in your possession for trafficking, I take a starting point of 20 years’ imprisonment had you been convicted after trial.

As stated in Abdallah, there is an aggravating factor calling for the enhancement of the starting point in this case as there is an international element involved in that you brought these drugs into Hong Kong from abroad. For that aggravating factor, I would enhance the starting point by 1 year. In the circumstances, the sentencing point after trial would be one of 21 years’ imprisonment.

Giving you the full one-third discount to allow for your plea of guilty, that sentence is reduced to one of 14 years’ imprisonment to which you shall be so sentenced.