HKSAR v. Abiona Ayola Fahouziath

CACC 127 /2021

[2022] HKCA 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 127 OF 2021

(ON APPEAL FROM HCCC NO 362 OF 2020)

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Before:  Hon Macrae VP in Court

Date of Hearing:  15 February 2022

Date of Judgment:  15 February 2022

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J U D G M E N T

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1.The applicant pleaded guilty to one count of trafficking in a dangerous drug and was sentenced by Alex Lee J to 10 years and 2 months’ imprisonment. She now applies for leave to appeal against her sentence.

2.On 17 March 2020 the applicant, a Benin national, arrived at Hong Kong International Airport from Abidjan in Ivory Coast, via Addis Ababa in Ethiopia. She was refused entry by immigration authorities and taken to the Customs Arrival Hall for customs clearance. On her person was found cash in the sum of US$2,000 and CFA Franc 5,375, as well as two mobile telephones. She was taken to hospital, where she eventually discharged 59 pellets of 552 grammes of a solid containing 393 grammes of cocaine. The retail value of the drug concerned was $624,864.

3.The applicant pleaded guilty on 28 December 2020 at committal proceedings before a magistrate. She was duly committed to the High Court where she appeared for sentence on 3 June 2021. At the time she was 53 years of age, married with four children and a hawker by occupation.

4.The judge found the applicant’s role to be that of an international drug courier. He adopted a starting point of 14 years and 10 months’ imprisonment in accordance with the guidelines established in R v Lau Tak-ming & another [1990] 1 HKLR 370. This he enhanced by 8 months to reflect the international element involved in bringing drugs across the border into Hong Kong, thus resulting in a notional sentence after trial of 15 years and 6 months. Giving the applicant a full one-third discount for her plea, the sentence was thereby reduced to 10 years and 4 months’ imprisonment. After referring to the applicant’s “exceptional difficult family circumstances” in her home country, the judge further considered “the exercise of my limited discretion” and reduced the sentence by two months “as an act of mercy”[1]; thus resulting in a sentence of 10 years and 2 months’ imprisonment.

5.The applicant has not filed any written submissions but asks today for mercy.

6.Mr Raymond Chan, on behalf of the respondent, submits that the judge was correct to have rejected the contention, made by the applicant’s counsel in the court below, that concealment, which risked the life of the applicant, should warrant lesser culpability. Furthermore, there was no justification for the further two-month reduction in respect of the applicant’s difficult personal circumstances, which are by no means unusual: see HKSAR v Somphaksorn Lamyai & Anor [2009] 1 HKC 437.

7.He notes that 14 years and 10 months’ imprisonment is in line with the approach considered in HKSAR v Herry Jane Yusuph [2021] 1 HKRLD 290, at [59] for a drugs courier. Further, the enhancement of 8 months for the international element was correct and in accordance with authority. Accordingly, the sentence could not be said to either manifestly excessive or wrong in principle.

Consideration

8.The sentence of 10 years and 4 months’ imprisonment on a plea of guilty to trafficking in 393 grammes of cocaine narcotic is in accordance with the prescribed guidelines for an international courier of dangerous drugs: further, the judge has already been merciful for what he considered were the applicant’s exceptional personal circumstances, by giving her a further reduction of 2 months’ imprisonment.

9.I can see no reasonably arguable grounds of appeal against the resulting sentence and the application for leave must be refused.

10.The applicant is advised that she has the right to renew her application for leave to appeal against sentence to the Court of Appeal, but she is also warned that the Court of Appeal has the power to order the loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the view that there was no justification for the renewal of the application.

Mr Raymond H M Chan PP, of the Department of Justice, for the Respondent

The Applicant appeared in person