HKSAR v. Calist Wilson Mosha

HCCC279/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 279 OF 2008

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Before   Deputy High Court Judge M Poon

Date:    22 January 2009 at 9.48 am

Offence:  Trafficking in a dangerous drug (販運危險藥物)

Transcript of the Audio Recording
of the Sentence in the above case

COURT:  The defendant pleads guilty to one charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The defendant, holder of a Tanzanian passport, arrived at Hong Kong International Airport from Dubai.  He was suspected to have internally concealed drugs.  He was sent to hospital and eventually discharged a total of 154 pellets of dangerous drugs which, on later analysis, were found to contain 1,930.18 grammes of a mixture containing a total of 1,185.59 grammes of heroin hydrochloride.  The retail value of the heroin was $534,000.00. 

Defendant is now aged 36 and has a clear record.  By way of mitigation, I was told that he is married with a child and used to be the sole breadwinner of the family.  It is said on his behalf that he used to be a jewellery merchant but because of economic difficulties, he resorted to borrowing money.  When he failed to repay, he was harassed and that was what caused him to commit the present offence. 

Counsel also highlighted the fact that the means of delivery involved in this case, caused risk to this defendant's own life.  Counsel urges me to pass a lenient sentence on this defendant.  In sentencing him, I have taken into account the nature of the offence, nature and quantity of the drugs involved, sentencing authorities and tariffs, and mitigation forwarded by counsel on his behalf.  I have also perused a handwritten letter from the defendant and his wife asking for leniency and mercy. 

For heroin weighing about 600 grammes, a starting-point of more than 20 years is to be adopted.  In the case of Ho Chi Ming CACC447/1994 that involved 1.2 kilograms of esters of morphine, a starting-point of 25 years was adopted.  That case involved an international element.

In the case of Hong Kong SAR v Mtwazi Carlos Adam CACC299/2007, the appellant arrived in Hong Kong from Tehran.  He was found to have hidden 117 pellets of heroin with narcotic contents of 1,117.16 grammes. 

The Court of Appeal quoted Vice President Stuart-Moore in Hong Kong SAR v Hong Chang Chi [2002] 1 HKC 298 at 302:

"Drug traffickers from abroad importing drugs into Hong Kong should plainly understand that they will receive no sympathetic consideration whatsoever 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 feature.  Those who live outside this jurisdiction such as the applicant in the present case must be disabused of any notion that Hong Kong is other than resolute in dealing with such offences."

Taking into account the international factor and the amount of drugs involved, I adopt a starting-point of 24 years and give the defendant one-third discount for his plea of guilty.  He is sentenced to 16 years' imprisonment.  That is in accordance with the case of Carlos Adam Mtwazi.  The narcotic contents of this case and that case are similar.  Sixteen years' imprisonment.