HKSAR v. Otieno Lorna Achieng

CACC 232/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 232 OF 2013

(ON APPEAL FROM HCCC 172 of 2013)

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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.On 13 November 2012, the applicant, who is a Kenyan national, arrived at Hong Kong International Airport on a flight from Entebbe via Doha.  She was intercepted for a searchby customs officers. Although no contraband was found in her luggage or on her person, customs officers suspected that she may have internally concealed dangerous drugs within her body.  Accordingly, she was escorted to Queen Elizabeth Hospital for medical examination.

2.After a medical officer had confirmed the presence of foreign objects inside the applicant’s body, she was arrested and cautioned.  To that caution she replied that the objects inside her body were dangerous drugs which she had swallowed when she was in Entebbe.  Over the course of the next few days, the applicant discharged from her body a total of 100 pellets consisting of 1291.97 grammes of a mixture containing 489.65 grammes of heroin hydrochloride.  A recorded interview under caution was subsequently taken with the applicant but she elected to remain silent.

3.The street value of the dangerous drugs was estimated at HK$1,158,897.09.

4.The applicant pleaded guilty before Deputy Judge Lugar-Mawson to one offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in the quantities set out above.  She was sentenced to 12 years’ imprisonment.  The applicant now appeals against her sentence.

The judge’s reasons for sentence

5.Given the relevant quantity of narcotic for sentencing purposes, namely 489.65 grammes of heroin hydrochloride, the judge considered that the starting point in respect of the quantity alone should be 17 years’ imprisonment.  Given the fact that the applicant had attempted to smuggle the drugs into Hong Kong from abroad, he considered that the starting point should be enhanced by one year for the international element involved in the offence.  Accordingly, he adopted an overall starting point of 18 years’ imprisonment, which he then discounted by one third for the applicant’s timely plea of guilty, thereby resulting in a sentence of 12 years’ imprisonment.

The applicant’s grounds of appeal

6.The applicant has referred to the mitigation that was before the judge, from which it can be seen that she has been visited by various tragedies in her life, including the death by cancer of both of her parents, the loss of three siblings to AIDS, with a fourth sibling also suffering from the same disease, and the death in a traffic accident of her fiancé.  She is now a single mother in her early 40’s with two children.  She ran a small business selling clothes but found it more and more difficult to survive.  Hence, she was persuaded through a friend to traffic in these drugs for the sum of US$4,500.

7.This matter was adjourned from yesterday because of a medical appointment which the applicant was due to have in the afternoon. We wished to afford her the chance of bringing any matter to our attention which might have had a bearing on her appeal.  In the event, her ailment is not such as to be of concern to us in this appeal and we are satisfied that the applicant is in the best place for her medical condition to be managed and monitored.  The applicant has also produced a letter in her own hand asking for leniency for the sake of her children.  These matters were, of course, before the sentencing judge who would have borne them in mind when sentencing.

Consideration

8.The relevant tariff guidelines suggest a starting point for sentence of 15 to 20 years’ imprisonment for between 400 and 600 grammes of heroin.  On a strictly mathematical approach, 500 grammes would have attracted a starting point of 17 and a half years’ imprisonment.  In our view, the judge cannot be faulted for adopting 17 years’ imprisonment as his starting point in respect of 489.65 grammes of heroin narcotic.

9.In respect of the enhancement of sentence by one year for the international element, it is a recognised principle of sentencing that defendants who introduce dangerous drugs across the border from another country or territory into Hong Kong, or attempt to take drugs from Hong Kong into another country or territory, will have their sentences enhanced depending on the quantity of drugs concerned.  There is nothing wrong with or exceptional about the judge’s enhancement of one year in the circumstances of this case, and in the light of the quantity concerned: see, for example, HKSAR v Marlese Mbachu (unrep) CACC 190/2012.

10.Nothing that we have heard today from the applicant, nor anything that was said in mitigation at her original sentence, persuades us that the sentence was either manifestly excessive or wrong in principle.

11.The application is refused.

Mr Eddie Sean, SADPP of the Department of Justice, for the respondent

The applicant appeared in person