HKSAR v. Hamid Annait Njoki Kaur

HCCC62/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 62 OF 2009

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Before:  Mr Recorder Macrae SC

Date:    6 April 2009 at 10.39 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:  Madam Hamid, you may remain seated.  You have pleaded guilty to a single charge of trafficking in 1,027.07 grammes of a mixture containing 583 grammes of heroin hydrochloride.

For sentencing purposes, the relevant quantity is 583 grammes of heroin hydrochloride, which places you towards the top end of the applicable bracket for sentence set out in the guideline case of R v Lau Tak Ming (1990) 2 HKLR 371, namely 15 to 20 years’ imprisonment for between 400 and 600 grammes of narcotic.

Without being too mathematical about it, the quantity in which you were trafficking falls within the range of about 18 to 20 years’ imprisonment.

The facts are depressingly familiar.  You are a Kenyan national who, upon arrival in Hong Kong, were refused entry by Immigration staff at the airport.  You had just arrived from Nepal, and you were subsequently interviewed and searched.  Secreted on your body, or should I say in your body, were the drugs concerned, comprising 60 pellets of heroin found between your thighs and a further 56 pellets of heroin which you had swallowed and were at the time inside you.

Although you initially claimed when questioned that you did not know what the things were, you subsequently pleaded guilty to this charge before a magistrate on 20 February of this year, as a result of which you have been committed to the High Court for sentence.

Mr Spicer, your counsel, has said everything he can say on your behalf.  It is said you were prevailed upon by others to courier this consignment of drugs into Hong Kong, and he has read out a letter to the court, which will be included in the court bundle, detailing how and why you, as a person of previous good character, came to be involved in such a serious criminal case.  The letter is very touching and plainly evidence of your remorse.

However, the offence for which you were prepared to risk so much is, as you will appreciate, an extremely serious one.  I have indicated that the range applicable to the quantity of drugs in your case is 18 to 20 years, without being too mathematical about the approach to the relevant tariff band.  The question is what is the starting point in your particular case.

There is one aspect of the matter which I should mention.  You were trafficking across borders.  Indeed, you were effectively importing this quantity of drugs into Hong Kong.  The courts have long regarded this international element as an aggravating feature of such cases.  It was said in the case of HKSAR v Hong Chang Chi (2002) 1 HKLRD 486 by the Court of Appeal that:

“When it comes to importing drugs from other jurisdictions into Hong Kong, the public interest demands that the message should be made more clearly than in almost any other situation.  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 factor.  Those who live outside this jurisdiction such as the applicant in the present case must be disabused of any notion that Hong Kong is anything other than resolute in dealing with such offences.”

Indeed, the international element in trafficking as an aggravating feature was expressly articulated even in Lau Tak Ming, the case produced before me this morning.  So this is not a case of local trafficking, as it were, although that would be serious enough.

In all the circumstances, the starting point I adopt in your case is 19 years’ imprisonment.  You have pleaded guilty, as I have said, at the very first opportunity, which is the most important factor in your mitigation.

In view of the other matters of mitigation advanced on your behalf concerning your personal circumstances and what appears to me and I accept to be genuine remorse, which is obviously reflected in your plea of guilty before the magistrate rather than waiting until the matter was set down for trial in the High Court, the sentence that I pass upon you is one of 12 years and 6 months’ imprisonment, and that is the sentence of the court.

(Remainder of proceedings not required)

Court rises - 10.52 am

6 April 2009