HKSAR v. Shiakamiri Elizabeth Irago

CACC 19/2022

[2022] HKCA 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 19 OF 2022

(ON APPEAL FROM HCCC NO 137 OF 2020)

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Before:  Hon M Poon JA in Court

Date of Hearing:  8 June 2022

Date of Judgment:  8 June 2022

Date of Reasons for Judgment:  8 June 2022

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REASONS FOR JUDGMENT

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Introduction

1.The applicant was convicted on her own plea and admission to one count of trafficking in a dangerous drug, namely, 432 grammes of a solid containing 308 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, before Hon Campbell-Moffat J (“the judge”) on 7 January 2022 and was sentenced to 11 years and 2 months’ imprisonment. By way of a Form XI filed on 25 January 2022 the applicant applied for leave to appeal against the sentence. The applicant appears in person.

The admitted facts

2.The applicant, a Kenyan national, arrived in Hong Kong at about 1017 hours on 4 July 2019 by flight from Nairobi via Dubai. She was handed over by the immigration officer to Customs for examination. She was subsequently sent to North Lantau Hospital. A medical examination revealed that there were foreign objects inside her body and subsequently she discharged a total of 44 pellets, the narcotics were confirmed by government chemist to be 308 grammes of cocaine with an estimated street value at HK$613,440. Two mobile telephones, cash (US$1,622 and KES 2,650 (equivalent to HKD 193)), two credit cards and a hotel booking receipt in the applicant’s possession at the time of arrest were all seized.

3.The applicant remained silent in a cautioned interview conducted with Swahili/English interpreter’s assistance on 6 July 2019.

Mitigation

4.Counsel for the applicant in the court below submitted that the applicant was a 33-year-old single mother with three daughters at their childhood and a 17-year-old adopted son. She owned a brick-making business and ran into debt. She was threatened by a money lender to commit the present offence. It was further submitted that the applicant was only a courier, she was remorseful and took part in Father Wotherspoon’s campaign.

Reasons for Sentence

5.The judge did not accept the mitigation that the applicant was acting under duress, having given the applicant an opportunity to “make good that mitigation in a Newton Hearing” which the applicant declined.[1] Pursuant to the tariff laid down in R v Lau Tak Ming[2], the judge adopted a starting point of 13 years and 6 months’ imprisonment. That was enhanced by 6 months following HKSAR v Abdallah[3] to reflect the international element. As the applicant only indicated her guilty plea at the 5^th case management hearing, only 20% discount was given and she was sentenced to 11 years and 2 months’ imprisonment.

6.The judge also noted that the applicant sought to assist later in the day, but the information provided by her was unlikely to result in any useful intelligence. She was of the view that any such discount for giving assistance should be left to the Chief Executive if it becomes appropriate.

Grounds of Appeal

7.At the leave hearing, the Applicant handed up a letter from Father Wotherspoon. She submitted that she was regretful of committing the offence and asked for forgiveness. She stressed that she had provided a lot of information to the authorities.

Respondent’s submissions

8.Respondent submits that there could have been no cause for complaint of the starting point, the enhancement for international factor and the 20% discount. Thus, this appeal is not reasonably arguable.

Consideration

9.The grounds advanced have all been canvassed at the time of sentencing.

10.The first step when approaching sentence for a trafficking offence is for the judge to identify the relevant guideline band (or bracket) applicable to the quantity of drug involved. The next step is to assess the role and culpability of the defendant based on the evidence before the court (whether he or she is a courier or shopkeeper etc), bearing in mind that the guidelines for trafficking are based upon the courier or storekeeper. The judge will then have to consider any aggravating factors, such as whether there existed an international element which will justify an enhancement of the starting point to a “notional starting point after trial”. Thereafter any mitigation including the discount for plea will be considered.[4]

11.The procedure adopted in sentencing by the judge cannot be faulted. The starting point, aggravating and mitigating factors are correctly identified and within bound. As to the claim of assistance given, according to HKSAR v Kilima Abubakar Abbas[5] at paragraph 83:

“83. ...one must have a measure of faith and trust in the relevant authority in Hong Kong – absent an allegation of mala fides – that the information is or is not of any actual or potential assistance, if that is what the authority says, whatever the defendant may think or have hoped for. Otherwise, the courts will be drawn into endless debates with the authority concerned, and futile wrangling between defence and prosecution, as to whether information was or was not of any actual or potential assistance, how it was treated or how it should have been treated. Far from that being a normal line of enquiry for judges to make, it should not be one for the courts at all because it is fraught with problems if the courts step out from their role in trying cases to managing the way the police or the Customs & Excise department do their job.”

12.This appeal is not reasonably arguable and I refuse to grant leave.

13.The applicant is reminded of her right to renew her application for leave to the Court of Appeal but such may attract a consequence of a direction for loss of time spent in custody pending her appeal, should the Court come to the view that there is no justification for the renewal of her application.

Mr Michael Ma, SPP(Ag.) of the Department of Justice, for the respondent

The applicant acting in person