HKSAR v. Wamae Esther Wanjiku Kinyanjui

CAC C 320/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 320 OF 2009

(ON APPEAL FROM HCCC NO. 107 OF 2009)

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BETWEEN

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Before: Hon Stock VP and Lunn J in Court

Dates of Hearing: 5 November 2010 and 15 March 2011

Date of Judgment: 15 March 2011

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Hon Stock VP (giving the judgment of the Court):

1.The applicant pleaded guilty to one count on an indictment which charged that on 7 August 2008 at Hong Kong International Airport she trafficked in 2,259.84 grammes of a mixture containing 1,600.97 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.On 14 September 2009, Deputy High Court Judge Mackintosh (as he then was) sentenced her to a term of 16 years 8 months’ imprisonment.  She now seeks leave to appeal against that sentence.

3.The facts fall within a narrow compass.  The applicant is a national of Kenya and came to Hong Kong from there via Dubai.  She was intercepted by Customs officers at the airport and inside a bag which she was carrying was a false compartment in which was a gold and silver tin toil bag containing heroin, the value of which was about HK$1.3 million.

4.Upon interview, the applicant claimed that it was arranged for her, another female from Kenya (who was the second defendant) and a woman called Lucy to come to Hong Kong via Dubai and that in Dubai she was given a bag by an African male and offered US$3,000 to import the bag into Hong Kong.  She was also given a SIM card and instructed to go to an address in Hong Kong and wait there for a telephone call.  It was part of the admitted facts that a document was seized from the applicant on which was also written the names of the other defendant and Lucy.

5.The quantity imported by the applicant is more than twice the 600 grammes which carries the 20 year band under the guidelines propounded by R v Lau Tak Ming [1990] 2 HKLR 371.  The judge adopted a starting point of 25 years’ imprisonment and reduced that by one-third to give effect to the plea of guilty, arriving at the sentence of 16 years 8 months’ imprisonment.

6.The offence in this case was committed before the decision in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 but that decision is for present purposes useful for its reference, at paragraph 23, of a starting point regularly adopted hitherto in the region of 24 or 25 years after trial for offences of trafficking in more than one kilogram where an international element was involved.  It cannot, in all the circumstances, be said that the starting point of 25 years adopted by the judge in this case, taking into account the aggravating factor of the international element, was manifestly excessive.

7.The applicant represents herself in this application.  She asserts that she provided material assistance to the Customs officials in relation to the other defendant and in relation to Lucy.  In the event, it transpires that the information was gleaned by the Customs officials from a document seized from the applicant.  This was a passenger service coupon from Dubai with three names on it, the name of the applicant and the names of the two other women.  The customs officers checked the passengers manifest for the Hong Kong bound flight and saw those three names on it.  So it transpires that no material assistance was in the event provided by the applicant.

8.The applicant also asserts that she is of poor health with a brain tumour which is benign and which has complications connected thereto and that her health is deteriorating.  In this regard, we note that in the course of mitigation in the court below, it was said on her behalf that she was receiving regular medication from the prison doctor and that her health was then good.  Be that as it may, there is no evidence before us that the medical condition from which she is suffering, whatever its degree, is not amenable to treatment in or from prison.  Should her medical condition become serious and call for the exercise of mercy, that is a matter for the Executive and not for this Court.

9.Finally, she asserts that certain of her mitigation was not advanced or not properly advanced.  There was an error about her family and place of origin but this was corrected by counsel. 

10.One of the items on which she relies is the suggestion that she was bullied by the man in Dubai whereas counsel merely put it on the basis of “a little of bullying”.  We have secured three records of interview of the applicant dated 8 August, 14 August and 4 November 2008.  The second one is an interview at her request when she asked to “clarify information on the case”.  It is a non-prejudicial statement and in it she explains the role of the man in Dubai who provided the drugs and the arrangements made with him.  There is not a hint there of any threats by him. Counsel referred to some bullying though not of a serious kind as well as to the effect of charm and encouragement and this theme marries with her failure to mention threats to the customs officials.

11.In the circumstances, we see no grounds for interfering with the sentence imposed and, accordingly, the application for leave to appeal against sentence is dismissed.

Mr Martin HUI, SPP of Department of Justice for the Respondent

Applicant- WAMAE Esther Wanjiku Kinyanjui – acting in person