HKSAR v. Massogoa Nasra Hassani

CACC 298/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 298 OF 2013

(ON APPEAL FROM HCCC NO. 234 OF 2013)

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BETWEEN

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J U D G M E N T

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Hon Macrae JA (giving the judgment of the court):

1.At about 9:30 pm on 21 December 2012, the applicant, a Tanzanian female in her mid-thirties, was intercepted by Customs Officers at Hong Kong International Airport on arrival from Addis Ababa. Since it was suspected that she might have concealed drugs within her body, she was sent to Queen Elizabeth Hospital for medical examination.

2.Just before 1 am on 22 December 2012, the applicant began discharging pellets from her body which were suspected to contain heroin.  She was accordingly cautioned, whereupon she replied “I am sorry”.  By 4:15 pm on 24 December 2012, the applicant had discharged 99 pellets which were later found to contain a total of 1.14 kilogrammes of a mixture containing 0.56 kilogrammes of heroin hydrochloride.  The estimated retail value of the heroin was HK$1,028,000.

3.On these facts the applicant pleaded guilty on 31 May 2013 at Eastern magistrate’s court to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

4.Upon her committal for sentence to the High Court on 13 August 2013, the applicant was sentenced by Deputy Judge Geiser to 12 years and 8 months’ imprisonment.  The judge adopted a starting point for the quantity of narcotic concerned of 18 years’ imprisonment under the guidelines in R v Lau Tak Ming [1992] HKLR 370, enhanced the sentence by one year for the international element of bringing the drugs across the border into Hong Kong, and then discounted the sentence by one third for plea; thus arriving at 12 years and 8 months’ imprisonment.

5.The applicant now applies for leave to appeal against her sentence.

6.In her home-made grounds of appeal which she has repeated this morning, the applicant says she is a single mother with a 10-year-old daughter and a mother who is suffering from terminal cancer.  She points out that prior to the offence she had had a clear criminal record and that she committed the offence because of financial and other personal difficulties.  She further speaks of the peculiar hardships encountered by prisoners in a foreign country and, in all the circumstances, asks for a reduction of her sentence.

7.The judge accepted, as do we, that the applicant’s mother is unwell and that she may have committed the offence in order to help her mother obtain and pay for medical treatment.  We also accept from a letter produced from a religious body in Tanzania, to the production of which Mr Lai does not object, that the applicant is of charitable disposition, having helped orphans and the disabled in the organisation to which she belongs in that country.

8.The circumstances of the applicant are distressingly familiar to these courts.  As McWalters J observed in HKSAR v Daresa Mariam Guma (Unrep) CACC 155/2012, a case involving a 43 year-old Tanzanian female who had similarly arrived on a flight from Addis Ababa with dangerous drugs concealed within her body:

“It is notorious that persons from an impoverished background in third world countries are frequently employed by drug traffickers as drug couriers and drug mules to transport drugs from one country to another. The persons most readily tempted by this kind of crime are precisely persons such as this applicant who come from desperate circumstances and so are more likely to be willing to assume the risks attendant upon international drug trafficking. It is for this very reason that the courts will not be swayed by the plight of the trafficker.

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It is, of course, harder for the courts to ignore the suffering of innocent third persons who might be affected by the long period of imprisonment imposed upon the drug trafficker. But this suffering is not visited upon them by the courts but by the drug trafficker who succumbs to the lure of easy money. The court cannot allow the impact upon third parties to influence it into imposing a sentence less than that which is otherwise appropriate for the crime that has been committed.”

9.These words could apply with equal force to the facts and circumstances of the case and applicant before us.  Both the starting point for sentence and the enhancement of one year for the international element involved in importing more than half a kilogramme of heroin narcotic were unexceptional and entirely appropriate and consistent with sentencing authority and policy in Hong Kong.

10.So far as the difficulties encountered by the applicant in prison are concerned, similar pleas have been advanced in other cases involving foreign prisoners.  Whilst we can understand on a human level the particular difficulties faced by prisoners separated for lengthy periods from their families in another country, as well as the practical problems of communication, diet and culture within custodial institutions, the courts have for many years set their face against entertaining appeals on this basis.  As was made clear by Stuart-Moore VP in HKSAR v Hong Chang Chi [2002] 1 HKC 295, at 302:

“When it comes to importing drugs from other jurisdictions into Hong Kong, the public interest demands that the message should be made more clearly than in almost any other situation. Drug traffickers from abroad, importing drugs into Hong Kong should plainly understand that they will receive no sympathetic consideration whatsoever on account of their status as foreigners or, as in this case, on account of their incarceration some distance from home. On the contrary, in cases of this kind the very act of importation from abroad is an aggravating factor. Those who live outside this jurisdiction, such as the applicant in the present case, must be disabused of any notion that Hong Kong is anything other than resolute in dealing with such offences.”

11.The sentence in this case was entirely in accordance with the guidelines on sentence for international drug trafficking and there are no grounds for interfering with an otherwise entirely proper sentence.

12.The application must be refused.

The applicant appeared in person

Mr Derek Lai Ag ADPP, of the Department of Justice, for the respondent