HKSAR v. Kondo Ally Mohamed

CACC 319/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 319 OF 2007

(ON APPEAL FROM HCCC 124 OF 2007)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Yuen JA in Court

Date of Hearing: 28 August 2008

Date of Judgment: 28 August 2008

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J U D G M E N T

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Hon. Yuen JA (giving the judgment of the Court):

1.On 16 August 2007, the Applicant pleaded guilty before Tong J. to one charge of trafficking in dangerous drugs, namely 1,153.45 grammes of a mixture containing 529.68 grammes of heroin hydrochloride.  He was sentenced to a term of imprisonment of 12 years and 8 months. 

2.The Applicant has applied for leave to appeal against sentence. 

3.According to the Summary of Facts, on 15 November 2006 customs officers intercepted the Applicant at the Customs Arrival Hall of Hong Kong International Airport.  Nothing suspicious was found in the Applicant’s luggage.  However he looked nervous as his hands were shaking and he was breathing heavily.  The officers considered his demeanour suspicious and sent him to hospital for an examination where an X-ray revealed that he had a foreign object in his abdomen.  The Applicant subsequently discharged a total of 91 packets which contained a mixture of a total weight of 1,153.45 grammes containing 529.68 grammes of heroin hydrochloride.  The market value of the drugs was estimated at more than $618,000.

4.In mitigation before the judge it was submitted on behalf of the Applicant that he has 2 young children and that he had taken the risk of carrying the drugs in a dangerous manner as he was heavily in debt in Tanzania and he needed the financial reward.

5.Following the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 (where it was held that trafficking in 400-600 grammes of heroin would normally attract a sentence of 15-20 years imprisonment), the judge adopted a starting point of 19 years for the amount of drugs involved (529.68 grammes).  The judge reduced that term by a third to reflect the guilty plea and declining to recognize financial hardship as a valid mitigating factor, sentenced the Applicant to imprisonment for 12 years and 8 months.    

6.In the Applicant’s grounds of appeal and in a statement supplied to this court, he has asked for greater leniency as his father had died of HIV/AIDS and he has to support his mother as well as be the guardian of his younger brother and sister.  He is also the father of two young children.  He says he only agreed to carry the drugs for reward after his business had been defrauded of some merchandise and his creditor had threatened to kidnap and kill him.

7.The sentence imposed by the judge was consistent with the guidelines in Lau Tak-ming.  However unfortunate the Applicant’s family circumstances may be, the courts of Hong Kong have said time and again that where a defendant is engaged on a deliberate course of conduct such as trafficking in dangerous drugs, he cannot pray in aid unfortunate family circumstances in mitigation (HKSAR v Wong Cheuk Lam CACC 280/2001, unrep.  11 January 2002). 

8.There is no merit in the grounds of appeal against sentence and the Applicant’s application for leave to appeal is dismissed.

The Applicant in person, present

Ms Grace YY Chan, Senior Public Prosecutor, of the Department of Justice, for the Respondent