HKSAR v. Nambalirwa Florence Parma

HCCC 284/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 284 OF 2016

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

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COURT: The defendant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134 of the Hong Kong Laws.

She pleaded guilty before me and after she admitted the Summary of Facts, I found her guilty as charged.

The facts disclosed that the defendant, a Ugandan female, was intercepted by a Customs officer on 26 December 2015, when she was at the green channel of the Customs Arrival Hall at the Hong Kong International Airport. Four metal cans were found inside three plastic bags with the logo of “Dubai Duty Free” on them. In three of the four cans, a total of 199 pellets wrapped in socks were located.

These pellets were later confirmed to contain 3,255 grammes of a solid containing 2,432 grammes of cocaine with an estimated retail value of HK$3,456,811.

The defendant was arrested and when questioned under caution, she said a villager in Dubai gave her the pellets, and that she did not receive any reward. In a video-recorded interview, the defendant said she was given the metal cans while in transit at Dubai by a Ugandan man called Emma. She was asked to bring the cans containing drinks and cookies back to Uganda for this Emma. She agreed to take the items without checking them. She had US$4,476 on her and she said of that amount, 2,800 were money given to her by others to buy mobile phones for them. The balance was her own money for buying samples of clothing for her business.

Before me, the defendant admitted that she was trafficking in the cocaine found inside the three cans.

The defendant is a 46 year-old widow with three children aged 14, 15 and 19 respectively. She is a national of Uganda and she claimed to be a businesswoman running a garment shop in Uganda. She is not a drug abuser and she has no previous criminal conviction in Hong Kong.

In mitigation, her counsel, Mr Gibson Shaw informed me that after the defendant’s husband died in 2010, the defendant joined an association for widows and started trading in clothing to support her family. Apart from raising her own three children, she also has to take care of the two children left behind by her brother after his death. Both the defendant and her youngest daughter are HIV positive and needed money to pay for medication. The defendant wanted to earn more money for her family. She was hoping to buy a piece of land to build a house for the family. She was greedy and agreed to traffic the dangerous drug in this case for a reward of US$2,000. She was caught before she was paid.

The defendant wrote to me, expressing her remorse in having committed the present offence. In her letter, she basically told me what her counsel had already informed me about her background and why she had committed the crime. She asked this court to be merciful to her so that she could return home soon, promising that she would never commit any crime again.

Upon the request of Mr Shaw, I adjourned the sentence pending a medical report on the defendant. According to the medical officer, Dr Pang, the defendant gave a history of having HIV for 13 years. She also have impairment in hearing and she was given treatment for latent syphilis. For her knee problem, she was referred to the Orthopaedic Clinic of the Queen Elizabeth Hospital. Minor ailment was treated during her stay in prison. Mr Shaw informed that the defendant agreed with the contents of the medical report and as to her knee problem, Mr Shaw also informed me that the defendant could not stand for any long time and could only sit for an hour, and then she had to move position.

As the defendant is in effect asking me to impose a lighter sentence due to her medical condition, on the last occasion, I invited both Mr Marray and Mr Shaw to address me on this issue. Mr Marray referred me in writing to a number of authorities including HKSAR v Natuhumuza Mildred CACC 29/2014, HKSAR v Lkhaijav Bayanmunkh CACC 320/2011 and HKSAR v Mugala Kevina Buwembo CACC 56/2013. Shortly stated, all these authorities support the view that ill health by itself will not usually be a sufficient justification for a reduction in sentence. Mr Shaw did not make any submission to the contrary. Mr Shaw conveyed what the defendant asked him to tell me about her medical condition, asking for leniency.

Trafficking in a dangerous drug is a serious offence. Upon conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life.

The total quantity of cocaine involved here is 2,432 grammes which fell into the category of 1,200 to 4,000 grammes with a starting point of 23 to 26 years. See the case of HKSAR v Abdallah [2009] 2 HKLRD 437. In Abdallah, the Court of Appeal also held that if there is an international element involved in the trafficking, there should be an enhancement of at least 2 years for drugs over 1,000 grammes.

While I appreciate that the defendant is not in good health, being a HIV positive, the fact is that ill health will seldom be a basis for reducing the sentence for crimes of gravity. See the case of R v Ho Mei Lin [1996] 4 HKC 491 and the case of Yip Kai Foon v HKSAR [2000] 3 HKCFAR 31 and the earlier case I mentioned, Lkhaijac Bayanmunkh. In that case, the Court of Appeal gave a detail discussion on this issue. It must borne in mind that the courts cannot by their sentences appear to endorse the view that ill health is a licence to commit crime. I should add that for the defendant’s ill health, apart from the HIV positive, of course, there was also confirmed that she had latent syphilis and the knee problem. But still, ill health in this case is not a basis for reducing the sentence because this crime is of great gravity.

Having considered the circumstances of the offence, I am of the view that a starting point of 24 years is appropriate. I will enhance the starting point by 2 years to take into account the international element. The defendant had pleaded guilty before me and I will give her the full one-third discount. There are no other grounds to further reduce her sentence.

For the offence of trafficking in a dangerous drug, the defendant is sentenced to 17 years and 4 months’ imprisonment, that is the two-third of 26 years.