HKSAR v. Mohamed Abubakar Nazir

CACC 318/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 318 OF 2007

(ON APPEAL FROM HCCC NO. 131 of 2007)

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Before:   Hon Stuart-Moore VP and Beeson J

Date of Hearing: 3 October 2008

Date of Judgment: 3 October 2008

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 16 August 2007, the applicant confirmed the plea of guilty he had entered in the Magistrates’ Court when he appeared before Tong J for sentence on a charge of trafficking in a mixture containing 1,317.86 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The applicant was sentenced on the same day to 16 years and 8 months’ imprisonment against which he now seeks leave to appeal.

2.The offence was committed in all-too-familiar circumstances. At 5.30 pm, on 15 November 2006, after the applicant’s luggage had been examined by Customs Inspector Karrie Chan following his arrival on a flight from Tehran via Doha, the applicant was X-rayed and the presence of foreign objects in his body was suspected.  In due course, he discharged 149 packets which contained the heroin identified in the charge.  The market value of this quantity of heroin was estimated to be $1,012,380.

3.At the time of the offence, the applicant was aged 33 and he had come from Tanzania where he lived.  He was, according to a letter he wrote to the court, in dire financial straits which is why he yielded to temptation.  Whilst this was his reason for trafficking it was, as the applicant will well appreciate, no excuse. 

4.The damage done by heroin to individuals, families and society as a whole is incalculable and for this reason alone high penalties are imposed for those who are caught in order not merely to punish the offender but to deter others who are thinking of taking a similar risk in return for the monetary rewards they are offered.  When the trafficking involves international boundaries, as here, it is an aggravating factor.  There is ample authority for the 25-year starting point taken by the judge (see: HKSAR v Ng Sai-ho, CACC 528/1997; HKSAR v Leang Sze-keong, CACC 566/1997) and the applicant has received the full benefit for pleading guilty in the form of a one-third discount.  The fact that others in similar circumstances to himself, as the applicant has been able to discover, have received lower sentences for trafficking in larger quantities of heroin is not to the point.  We are only concerned with the propriety of the applicant’s sentence and we are satisfied that this was not manifestly excessive.

5.Accordingly, the application is dismissed.

Ms Wong Kam-hing, SPP, of the Department of Justice, for the Respondent.

The Applicant, in person.