HKSAR v. Kwendo Jane Nelly Awour

HCCC 401/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 401 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant pleaded guilty before a magistrate and was committed for sentence for one count of trafficking in a dangerous drug.

The total quantity of dangerous drug involved in this case is 0.92 kilogramme of a mixture containing 0.51 kilogramme of heroin hydrochloride, and 0.13 kilogramme of six monoacetylmorphine hydrochloride.

The estimated street value of the drugs amounted to over HK$620,000.

The defendant was born in Kisuma, Kenya. On 1 April 2014 she arrived at Hong Kong International Airport from Nairobi, Kenya and was intercepted by Customs officers. Upon search, a pellet of suspected dangerous drugs was found concealed inside her bra, and 18 more pellets were found inside her handbag.

She was then brought to Queen Elizabeth Hospital for medical examination. During the period between 2 April and 11 April 2014, she excreted a total of 77 pellets of dangerous drugs.

The defendant is now 45 years old, she is divorced and has four daughters in Kenya. She was self-employed for her own business before her arrest. She has a clear record in Hong Kong.

In her letter written to this court, the defendant said her marriage broke up six years ago and since then she has been a single mother. Two of her daughters are grown-ups with college certificates but without any job, and the other two are still in Primary School. She has also her own old mother and a grandson to support. Her mother was suffering from throat cancer.

With this background, she was persuaded by others to carry drugs for rewards. She would be paid a few thousand dollars upon finishing the work. In her letter, the defendant expressed that during the period which she was put under custody after her arrest she realised how wrong her decision was to commit this crime and how it might affect her own daughters. Now she wants to spread the message to people in Africa not to be used to traffic drugs. In fact, the defendant had assisted Father John Witherspoon in his campaign against the exploitation of African women to traffic drugs to this region.

Mr Mitchell, counsel for the defendant, submitted a photograph showing Father Witherspoon together with the defendant’s daughter in Tasmania. According to Mr Mitchell, Father Witherspoon’s campaign has been a success and the number of African women committing this crime has reduced significantly recently.

Father Witherspoon has attended this court today and was willing to answer questions from this court. As the Father has sat through the mitigation of Mr Mitchell and heard what he said, I do not find it necessary to trouble him.

Having read the defendant’s letter and also the benefit of the information provided by Mr Mitchell, I am satisfied that the defendant has now become very remorseful and decided to make every effort to remedy her wrongdoing.

Trafficking in dangerous drugs is an extremely serious offence. People committing this offence will inevitably face a sentence of a substantial term of imprisonment. The length of the imprisonment will depend mainly on the quantity of the dangerous drugs involved.

For trafficking in heroin, the Court of Appeal has laid down the sentencing tariff in R v Lau Tak Ming [1990] 2 HKLRD 370, and also in HKSAR v Abdallah [2009] 2 HKLRD 427. For trafficking in heroin of a quantity between 600 grammes and 1,200 grammes, a starting point of 20 to 23 years’ imprisonment should be adopted.

In HKSAR v Daresa Mariam Guma HCCC 17/2012 (29 March 2012), it was held that for the purpose of sentencing monoacetylmorphine hydrochloride is to be treated the same as heroin hydrochloride. The sentence in Daresa was confirmed by the Court of Appeal.

In the present case, the total quantity of heroin hydrochloride and monoacetylmorphine hydrochloride involved is 640 grammes. Applying the tariff under Abdallah, the appropriate starting point should be just above 20 years’ imprisonment. In the present case, the defendant has imported the heroin into Hong Kong.

In Chung Ping Kun CACC 85/2014, the Court of Appeal laid down a guideline for enhancement of sentence for importing dangerous drugs into Hong Kong. For a quantity between 500 and 1,000 grammes, the appropriate enhancement should be 1 to 2 years’ imprisonment. However, Mr Mitchell rightly reminded me that the present offence was committed before the judgment of Chung Ping Kun and, therefore, the guidelines shall not be binding on this court for the purpose of sentencing the defendant.

Mr Mitchell drew to my attention the cases listed out in the judgment of Chung Ping Kun which indicated the enhancement of sentence in the range of 6 months to 1 year for importing a similar quantity of drugs into Hong Kong.

In the circumstances, I am of the view that the appropriate starting point for sentence of the defendant should be 20 years’ imprisonment and the sentence should be enhanced by 6 months.

Taking into account the defendant’s early plea of guilty, and the special circumstances peculiar to the defendant that justifies a further reduction of sentence, a discount of 50 per cent of the sentence should be given to the defendant. Hence, the defendant is sentenced to 10 years and 3 months’ imprisonment.