HKSAR v. Makbul Shajar Shariff Abubakar Abdalla

CAC C 6/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 6 OF 2012

(ON APPEAL FROM HCCC NO. 415 OF 2011)

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Before: Hon Lunn JA and Macrae J in Court

Date of Hearing: 5 September 2012

Date of Judgment: 5 September 2012

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J U D G M E N T

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

1.The applicant, who appears in person, seeks leave to appeal against the sentence of 9 years and 6 months’ imprisonment imposed upon her by Bokhary J on 23 December 2011. The applicant had pleaded guilty in the Magistracy to a single charge of unlawful trafficking in a dangerous drug, contrary to section 4(1) (a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, and had been committed to the High Court for sentence.

THE CHARGE

2.The Particulars of Offence of the charge allege that on 4 July 2011, at the Transit Area of Passenger Terminal 1 of the Hong Kong International Airport, the applicant unlawfully trafficked in 0.51 kilograms of a mixture containing 0.3 kilograms of heroin hydrochloride.

THE FACTS

3.In pleading guilty to the offence in the Magistracy the applicant accepted that she had unlawfully trafficked in the stipulated dangerous drugs by swallowing no fewer than 52 packets, in which the total substance was contained, which she then brought into Hong Kong as she was in transit from Bangkok to the Mainland.  There, the dangerous drugs were to be collected from her.  She was to be paid at least US $4,000 for her services.  In mitigation, it was accepted that she had swallowed the packets of dangerous drugs in a hotel room in Bangkok.

REASONS FOR SENTENCE

4.In her reasons for sentence, the judge stipulated 13½ years’ imprisonment as the starting point for sentence, which she enhanced by one year to reflect the aggravating feature of the importation of the dangerous drugs into Hong Kong.  Affording the applicant a discount of “slightly more than one third”, from the resulting total of 14½ years’ imprisonment, to reflect an “early plea of guilty and your special personal circumstances”, the judge imposed a sentence of 9½ years’ imprisonment.

GROUNDS OF APPEAL AGAINST SENTENCE

5.In her homemade grounds of appeal against sentence the applicant simply requested leave to appeal against sentence.  However, in an undated letter, provided to Chu JA, at the ‘mention hearing’ on 23 March 2012, the applicant contended that, having regard in particular to her personal circumstances the sentence imposed upon her was “a bit too harsh”.  Of those circumstances, she reminded the court of the mitigation advanced before Bokhary J, namely that she is the single mother of a 4½-year-old son who lives with her own aged mother in Kenya.  Also, the applicant asserted that she was in transit to the Mainland and had no intention of bringing the dangerous drugs into Hong Kong.  In the result, the applicant seeks the mercy of the court in reducing the sentence imposed upon her.

A CONSIDERATION OF THE SUBMISSIONS

6.As Ms Eva Chan, counsel for the respondent, pointed out in her written submissions the starting point for sentence of 13½ years imprisonment stipulated by the judge is in accordance with the guidelines for sentence articulated in the judgment of this Court in the Queen v Lau Tak Ming [1990] 2 HKLR 370, the 300 grams of heroin hydrochloride in which the applicant unlawfully trafficked falling in the band of 200 -400 grams of heroin hydrochloride for which the sentencing range is 12-15 years’ imprisonment.

7.As was noted by Stuart-Moore V-P in the judgment of this court in HKSAR v Abdallah Anwar Abbas [2009] HKLRD 437 (page 450, paragraph 31) the aggravating feature constituted by an “international element”" in the commission of the offence of unlawful trafficking in a dangerous drug has long been acknowledged.  In Abdallah, this court went on to note that in such cases, involving amounts of 1 kilograms or more of heroin hydrochloride or cocaine, it was to be anticipated that the appropriate enhancement of the starting point for sentence would be not less than two years’ imprisonment.  In HKSAR v Mateus da Silva [2010] 5 HKLRD 576, in quashing the sentence imposed by the judge and approaching sentencing afresh, this court said that the appropriate level of enhancement of the starting point taken for sentence to reflect the aggravating feature of importation into Hong Kong of 543 grams of heroin hydrochloride and 173.66 grams of monoacetylmorphine hydrochloride was one years’ imprisonment.

8.In Lau Tak Ming this court noted that the gravity of the offence of unlawfully trafficking in dangerous drugs was such that many mitigating factors would carry little weight (page 386F-G) :

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight.”

9.Similar sentiments were expressed in the judgment of this court in Abdallah, (page 451, paragraph 32):

“As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally – dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”

10.Albeit that the circumstances in which the applicant’s family now find themselves are sad and, no doubt, difficult they are not factors which are relevant to the imposition of the appropriate sentence for the offence committed by the applicant.  As the applicant is no doubt painfully aware, she has visited those added difficulties on her family as a result of the consequences of her criminal conduct.

11.On the applicant’s own account, she became involved in the unlawful trafficking in the dangerous drugs, the subject of the charge, in Bangkok.  Having come to Hong Kong, she was to transit to the Mainland with the dangerous drugs.  The applicant accepted that she expected to be well paid for her role as a courier of the dangerous drugs.  Clearly, there was a significant international element in the circumstances leading to the commission of the offence in Hong Kong.  In those circumstances, the judge was entitled to enhance the starting point taken for sentence by one years’ imprisonment.

12.In affording the applicant a discount of more than one third from that taken for the enhanced starting point for sentence the judge was adopting a more than normally generous approach to the applicant.

CONCLUSION

13.In the result, for the reasons given earlier, we are satisfied that the sentence imposed upon the applicant was entirely appropriate.  Accordingly, the application for leave to appeal against sentence is refused.

Miss Eva Chan, SPP(Ag.), of the Department of Justice, for the Respondent

Applicant, act in-person