HKSAR v. Mtwazi Carlos Adam

CACC299/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 299 OF 2007

(ON APPEAL FROM HCCC126 OF 2007)

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Before : Hon Stuart-Moore VP, Beeson and Saw JJ in Court

Dates of Hearing : 25 September 2008

Date of Judgment : 25 September 2008

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J U D G M E N T

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Hon Saw J (giving judgment of the court) :

1.On 15 June 2007 the applicant pleaded guilty at the Tsuen Wan Magistrates’ Court to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  On that day he was committed to the Court of First Instance for sentence.

2.On 16 August 2007 he appeared before Tong J and confirmed his plea of guilty and the summary of facts which had been submitted in support of the charge.  After hearing the applicant’s mitigation Tong J sentenced him to imprisonment for 16 years.

3.On 31 August 2007 he filed a notice of application for leave to appeal his sentence.  This is the hearing of that application. 

4.The particulars of the charge to which the applicant pleaded guilty alleged that on 5 November 2006 he trafficked in a dangerous drug, namely, 1,479.36 grammes of a mixture containing 1,117.16 grammes of heroin hydrochloride.

5.The summary of facts revealed that on 5 November 2006, shortly after 4 p.m. the applicant was detained by customs officers at the Hong Kong International Airport.  He had arrived in Hong Kong from Tehran in Iran via Doha in Qatar.  Whilst a search of the applicant’s luggage revealed nothing unusual the customs officers suspected that he might have had drugs concealed internally.  This suspicion proved to be correct.  The applicant was taken to the Queen Elizabeth Hospital and over the period 5 to 11 November he discharged 117 pellets which were subsequently found to contain the drugs referred to in the charge.

6.When the applicant was arrested and cautioned he told the customs officers that :

(a) he was asked by a man in Nairobi to bring the drugs to Hong Kong;

(b) he was given a reward of US$2,000 to do this; and

(c) he knew that the contents of the pellets were drugs but did not know precisely what kind of drugs they were.

7.It was an admitted fact before the judge that the market value of this quantity of heroin hydrochloride was $895,000.

8.On the day of his conviction the applicant was 18 years of age.  He is a Tanzanian national.  At the time of the commission of the offence he was a student.

9.The judge took a starting point of 24 years’ imprisonment based on the quantity of the heroin hydrochloride and the guidelines for sentence laid down in R v. Lau Tak Ming and Another [1990] 2 HKLR 370 at 387.  He reduced this to 16 years for the applicant’s timeous plea of guilty.  He considered that there were no other factors which would permit him to reduce the sentence further.

10.The applicant is today unrepresented.  In his homemade grounds of appeal, he has said that the sentence was “too severe”.  In a letter to this court dated 25 May 2008 he pointed out that he was born on 2 November 1988 and was only 18 years of age at the time of the commission of this offence.  He says that he came from a poor family and had not received a great deal of education.  He reiterated in that letter his remorse and that as a foreigner incarcerated in Hong Kong he will be all the more isolated than others might be.  He asked for a reduced sentence.  Today, before this court he has again requested that his sentence be reduced.  He has emphasised again as he did in his letter and by his plea of guilty that he is remorseful and that he acknowledges that he was wrong to do what he did. 

11.As to the applicant’s age, it has long been recognized by this court that it is only in cases of extreme youth that the age of a person who commits a serious offence may be of relevance.  In the present case the applicant is not of such an age.

12.As to the fact that the applicant is a foreigner serving his sentence in Hong Kong, this is not a factor which the court will take into account in mitigation in any substantial degree. 

13.Stuart-Moore VP observed in HKSAR v. Hong Chong Chi [2002] 1 HKC 298 at 302 that :

“Drug traffickers from abroad, importing drugs into Hong Kong will receive no sympathetic consideration on account of their status as foreigners or as in this case on account of their incarceration some distance from home.  On the contrary, in cases of this kind, the very act of importation from abroad is an aggravating factor.  Those who live outside this jurisdiction, such as the applicant in the present case must be disabused of any motion that Hong Kong is other than resolute in dealing with such offences.”

14.In the present case it is apparent that the judge was aware of the fact that the applicant was a foreign national and came from a culturally different background than those other prisoners with whom he would be serving his sentence.  Nevertheless he quite properly did not increase the amount of discount by reason of this.

15.The starting point adopted by the judge was 24 years, and this is appropriate for the importation of this quantity of heroin hydrochloride.

16.The discount of one-third for the applicant’s plea of guilty cannot be faulted.  As the judge observed there were no other factors which would properly justify an increase in that discount.  We consider that the sentence passed on the applicant was neither wrong in principle nor manifestly excessive.

17.Accordingly, and for the reasons given, leave to appeal is refused and the application is dismissed.

Mr Robert S.K. Lee, SADPP, leading Ms Anna Y.K. Lai, SPP of the Department of Justice, for the Respondent

Appellant, in person