HKSAR v. Nanfuka Angel

CACC359/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 359 OF 2009

(ON APPEAL FROM HCCC NO. 195 OF 2009)

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BETWEEN

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Before :  Hon Yeung JA and McMahon J

Date of Hearing : 14 April 2010

Date of Judgment : 14 April 2010

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JUDGMENT

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Hon McMahon J (giving the judgment of the Court) :

1.The applicant, a 26-year-old citizen of Uganda, was convicted in the High Court on her own plea before Poon J of trafficking in 523.62 gms of heroin. She was sentenced to 12 years and 4 months’ imprisonment and now seeks leave to appeal that sentence.

2.The facts of the case were straightforward. The applicant arrived at Hong Kong International Airport on 14 July 2009 aboard a flight from Malaysia. As she attempted to proceed through customs she was intercepted and eventually subjected to a body search. Foreign objects were found inside her body. Subsequently at Queen Elizabeth Hospital 98 pellets containing the drugs the subject of the offence were recovered from her vagina and anus.

3.The judge adopted a starting point of sentence of 18 years and 6 months’ imprisonment after taking into account the type and quantity of drug and the international element involved. That starting point was reduced by one-third to a sentence of 12 years and 4 months’ imprisonment to reflect the applicant’s plea of guilty.

4.No criticism can be, or is, made of the judge’s approach to the starting point of sentence. The applicant, who is unrepresented before us, simply complains that the judge did not take into account as mitigating factors her family circumstances in Uganda. Those circumstances are that her mother is old and ill; that the applicant is the main financial support for her mother, daughters, sisters and niece; that her mother cannot look after the younger members of the applicant’s family and cannot afford to educate them without the applicant’s financial support which she cannot provide while in prison in Hong Kong.

5.It is true the judge did not take these matters into account. Nor should she have. They are matters which almost inevitably arise when a person such as the applicant is imprisoned for a substantial term, and do not amount to the exceptional humanitarian circumstances which would otherwise warrant a reduction in sentence.

6.The applicant also reiterates that she is remorseful for her actions. But that is a matter which has been fully allowed for in the reduction of sentence flowing from her plea of guilty.

7.There is nothing which would justify any further reduction of sentence and the application is dismissed.