HKSAR v. Kamano Michel

CACC375/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 375 OF 2009

(ON APPEAL FROM HCCC NO. 273 OF 2009)

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Before : Hon Stock VP, Hartmann JA and Lunn J in Court

Date of Hearing : 28 May 2010

Date of Judgment : 28 May 2010

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JUDGMENT

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Hon Lunn J (giving the Judgment of the Court) :

1.The applicant seeks leave to appeal against the sentence of 14 years and 6 months’ imprisonment imposed upon him on 20 October 2009 by Mr Justice Line following upon his conviction on his plea of guilty in the magistracy of a single count of unlawfully trafficking in a dangerous drug, namely 948.56 grams of a mixture containing 637.04 grams of heroin hydrochloride and 79.66 grams of monoacetylmorphine hydrochloride. 

2.The applicant was detained by customs officers in the Customs Arrival Hall at Hong Kong International Airport on his arrival from Bangkok on 8 April 2009.  He held a Guinean passport.  An X-ray of his stomach taken in the Queen Elizabeth Hospital revealed the presence of foreign objects inside the applicant.  In the course of the next two days, he excreted a total of 77 pellets which contained the dangerous drug the subject of the charge.  

3.In a video recorded interview the applicant claimed that he had ingested the pellets given to him by a man at a guest house in Bangkok on the promise that he would be paid a reward of US$2,500 on successful delivery of those items to Hong Kong.  He claimed that he believed the items he had ingested were medicine.  However, in tendering his plea of guilty he accepted that he was trafficking unlawfully in dangerous drug. 

4.In mitigation the judge was informed that the applicant resided in Lagos in Nigeria where he had been tempted by the offer of payment of that US$2,500 to fly to Bangkok and then to Hong Kong with the dangerous drug.

5.In articulating his reasons for sentence, the judge observed that the quantity of the dangerous drug of which the applicant possessed fell into the band of 20 to 23 years’ imprisonment identified by this court differently constituted in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 as the appropriate sentence after trial for unlawful trafficking in amounts of heroin in the band of 600 grams to 1,200 grams.  He noted that the court had gone on to determine that one of the aggravating factors calling for an enhancement of the starting point to be taken for sentence was whether there was an “international element” involved, in particular the court went on to specify that where amounts of one kilogram and above of heroin were involved the court did not envisage that the enhancement of sentence thereby required would be less than two years’ imprisonment.

6.The judge noted that the amount of heroin possessed by the applicant was less than one kilogram and thus, in consequence, “your enhancement will be less than 2 years”.  In the event the judge stated that he took a starting point of 22 years’ imprisonment.

7.The judge stated that in discounting the sentence he had taken a starting point of sentence to a level slightly greater than one-third offered to those who pleaded guilty.  He did that to acknowledge that the applicant had cooperated throughout and had pleaded guilty in the magistracy.  As a result he imposed a sentence of 14 years and 6 months’ imprisonment.

8.In his proposed ground of appeal against sentence the applicant contends that the sentence imposed upon him was “Harsh”, and that some of his fellow prisoners who had been convicted of unlawfully trafficking in greater amounts of dangerous drugs had received lesser sentences of imprisonment.

9.There is no doubt that, having regarded to the amount of heroin and the factor of aggravation represented by the importation of the dangerous drugs into Hong Kong by the applicant, the starting point identified by the judge, namely 22 years’ imprisonment was entirely appropriate.  In reducing the sentence to 14 years and 6 months’ imprisonment by offering the applicant a discount greater than one-third the judge was generous to the applicant.

10.In the result we are satisfied that there is no merit in the applicant’s proposed ground of appeal and the application for leave to appeal is dismissed.

Mr Alex Lee, SPP of Department of Justice, for HKSAR

Applicant in person, present