HKSAR v. Koshuma Godfrey Gadiel

CACC342/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 342 OF 2009

(ON APPEAL FROM HCCC 242 OF 2009)

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BETWEEN

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Before : Hon Tang VP and Saw J in Court

Date of Hearing : 18 June 2010

Date of Judgment: 18 June 2010

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JUDGMENT

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Saw J :

1.On 28 September 2009 the applicant was sentenced to be imprisoned by Beeson J to a term of 14 years and 8 months’ imprisonment having previously pleaded guilty to a charge of trafficking in dangerous drugs contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap. 134.

2.The particulars of the offence were that the applicant had on 11 February 2009 unlawfully trafficked in a dangerous drug namely 1.02 kilogrammes of a mixture containing 0.71 kilogrammes of heroin hydrochloride.

3.The facts admitted by the applicant revealed that on 11 February 2009 he had arrived at the Hong Kong International Airport on a flight from Kuala Lumpur in Malaysia.  Customs officers found no contraband in his luggage but suspected that he may be carrying drugs internally.  Those suspicions proved to be correct.  He was taken to Queen Elizabeth Hospital where an X-ray established that his stomach contained a number of foreign objects.  Over the next 4 days he discharged 92 pellets which upon subsequent analysis by the Government Chemist were determined to contain 1.02 kilogrammes of a mixture containing 0.71 kilogramme of heroin hydrochloride.

4.The applicant was interviewed.  He told the customs officers that he was a Tanzanian national.  He admitted that he had been paid US$4,500 to bring drugs into Hong Kong.

5.It was an admitted fact that the quantity of drugs trafficked by the applicant had a street value in excess of HK$500,000.

6.Other than the applicant’s plea of guilty there were no other significant mitigating factors.  The judge said this :

“Under the Lau Tak Ming’s guidelines the sentence for this proportion of narcotic is over 20 years. This is a serious offence and made more serious because of the abuse of Hong Kong as a legitimate travel and business destination by persons who pretend that they are bona-fide tourists or businessman so as to deal in drugs destined for other places. This potentially puts large quantities of dangerous drugs within the grasp of Hong Kong citizens and places on the Hong Kong government the unwanted burden of having to provide prison and other facilities for foreign nationals.”

Later she said this :

“In this case I adopt a starting point for sentence of 21 years. I add one year for the international element. I give a full discount for the plea of one third and I arrive at a sentence of 14 years and 8 months’ imprisonment.”

The application

7.The applicant’s principal complaint is that the judge enhanced the sentence starting point to accommodate the fact that there was an international component to his offence.  He also complains that his sentence is harsh given that comparable sentences have been imposed on drug traffickers who have imported larger quantities of dangerous drugs into Hong Kong.

8.The first complaint can be dealt with readily.  The Court of Appeal in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 observed as follows :

“ It has long been accepted that the international element in trafficking, whether by importation or by exportation, is to be regarded as a factor in material aggravation of the offence for sentencing purposes, …”

9.The Court of Appeal in Abdallah also provided to sentencers additional guidelines when the quantity of drugs (in that case and in the instant case) heroin hydrochloride, exceeded the cut off point for sentencing provided for in Lau Tak Ming.

10.The court in Lau Tak Ming accepted that where there is trafficking in excess of 600 grammes of heroin hydrochloride this falls into what is described as “large quantities”.  In those circumstances they indicated that sentences in excess of 20 years’ imprisonment are appropriate bearing in mind at all times that the maximum sentence provided for by the legislation was life imprisonment.

11.Abbas was decided on 12 March 2009 some 4 weeks after the date of the applicant’s offence.  The guidelines provided there were not retrospective.  It is apparent that those guidelines were not applied by the judge to the applicant but it is equally apparent that had they been in force a starting point of at least 22 years if not more would have been appropriate.

12.The approach the judge adopted and the starting point including the additional one year to reflect the international element in the applicant’s offence was within the parameters of the then sentencing guidelines.

13.The applicant’s second complaint is that by reference to other sentences passed for trafficking in larger quantities of the same type of drug his sentence is manifestly excessive.  We have considered this complaint and the cases to which he refers.

14.It suffices to say that we are not persuaded that they provide support for his contention that his sentence should be reduced.

15.As the Court of Appeal observed in HKSAR v Mohamed Omar Ally, CACC407/2008 (unreported) para. 24 :

“ The fact that other drug traffickers have received sentences which are less than this applicant cannot engender a genuine sense of grievance unless of course the starting point adopted for his sentence is too high …”

16.In the instant case the starting point for sentence of 22 years was neither wrong in principle nor manifestly excessive.  There is no merit in the application for leave to appeal sentence and I would dismiss it.

Tang VP :

17.I agree and have nothing to add.

Ms Teresa Kam, SPP of the Department of Justice, for the Respondent

The Applicant in person, present