HKSAR v. Mary Adhiambo Opollo

CACC 128/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO.128 OF 2009

(ON APPEAL FROM hccc 298 of 2008) 

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Before: Hon Yeung JA and Saw J

Date of Hearing:   3 September 2009

Date of Judgment:  3 September 2009

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

1.On 6 July 2008, the applicant (Mary Adhiambo Opollo), a Kenyan female, arrived at the Hong Kong International Airport from Calcutta via Bangkok. She was intercepted by customs officers and was subsequently found to have carried, inside her body, 99 pellets of heroin hydrochloride mixture. The total weight of the mixture was 1,113.93 grammes containing 583.65 grammes of heroin hydrochloride.

2.The applicant said she was asked to collect the pellets in Delhi and deliver them to China through Hong Kong for a reward of US$3,000.

3.On 24 March 2009, the applicant appeared before McMahon J in the High Court and pleaded guilty to the charge of trafficking in a dangerous drug.

4.The judge sentenced the applicant to 12 years and 8 months’ imprisonment. The judge adopted an initial starting point of 18 years and enhanced it by one year, given the international dimension involved in the offence.

5.The applicant was HIV positive, but the judge did not consider it a matter of substantial mitigation. The judge reduced the 19-year starting point by one-third on account of the guilty plea.

6.The applicant seeks leave to appeal against the sentence. In her letter to the court, the applicant emphasized that she was a mother of four young children. She said she was trying to get medicine for her baby who was born sick. She asked for clemency, as both her physical and mental condition was poor. The applicant tells us that her baby is now quite ill.

7.We do have sympathy for the applicant and her children if what the applicant told us is true. However, trafficking in a dangerous drug is a very serious offence and courts in Hong Kong have repeatedly emphasized that personal difficulty and family hardship are not mitigating factors of such an offence.

8.To demonstrate the seriousness with which the offence of trafficking in a dangerous drug is viewed, the Court of Appeal in Hong Kong had laid down clear sentencing guidelines.

9.According to R v Lau Tak Ming & Ors [1990] 2 HKLR 370, trafficking in 400 to 600 grammes of heroin will attract a sentence of 15 to 20 years’ imprisonment.

10.The quantity of heroin involved in the present case is close to 600 grammes and the starting point of 19 years, even ignoring the international dimension factor, is not manifestly excessive.

11.The judge was also right not to view the applicant’s physical condition a significant mitigation. She will be properly attended to.

12.The judge had correctly reduced the applicant’s sentence by one-third because of her guilty plea to 12 years and 8 months, which is a proper sentence.

13.We have no basis to further reduce the sentence. The application for leave to appeal against sentence is therefore dismissed.

Ms Mary Sin, SADPP of the Department of Justice for the Respondent.

Applicant: In person.