HKSAR v. Kimaro Naima Ally

HCCC 418/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 418 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug. You admitted that on 16 April 2014 you unlawfully trafficked in 551 grammes of a mixture containing 212.63 grammes of heroin hydrochloride and 44.21 grammes of 6-monoacetylmorphone hydrochloride.

On 16 April you arrived in Hong Kong from a flight originating from Dar Es Salaam via Dubai. You were intercepted by Customs officers upon arrival. It was suspected that you were transporting drugs within your body. You were therefore escorted to hospital.

At the hospital you discharged 44 packets of dangerous drugs which were the drugs as mentioned in the charge.

Under caution you said that a Nigerian man called Tony had given them to you. You were asked to bring them to Guangzhou where an unknown person would collect the pellets from you. You were to receive US$6,000. Tony had paid for your air tickets.

The retail value of the drugs was estimated at HK$371,374.

Your counsel, Mr Duncan Percy, has mitigated thoroughly on your behalf. He has also submitted to me a letter written by yourself to me in respect of your background and your remorse. I have taken into account all that he has had to say on your behalf.

You are aged 28 and are of clear record. You are Tanzanian and lived in Dar Es Salaam. You worked as a hairdresser earning US$100 a month. Sadly, and most typically in this type of case, you were used to transport these drugs out of Dar Es Salaam to Hong Kong because of your dire financial situation and also the hardship that you have faced in Dar Es Salaam.

Mr Percy has informed me that you are the sole breadwinner of six persons of your immediate family. You also have young daughter aged 7.

As you have said to me in your letter, the reason for you committing this offence is because you wanted to earn money, particularly to pay for your mother’s medical expenses. She is suffering from HIV Aids and has had problems with her kidney for many years.

When this Nigerian man Tony who befriended you in your hairdressing employment and offered you $6,000 as a reward for transporting these drugs to Hong Kong, you accepted the offer as it was beyond belief that you could earn more than five years of your salary in one go.

As I mentioned, sadly, you are not the first person in Hong Kong to have this background and to be offered these large amounts of money to transport drugs and be used as a mule.

Of course, you will know now that earning quick fast money is more than likely to be an illegal way to earn money. I am sure Mr Percy has informed you, that the offence of trafficking in a dangerous drug is a very very serious offence punishable by lengthy periods of imprisonment.

It has been clearly stated by the Court of Appeal that a clear record, or factors such as coming from a poor background and being lured to commit these offences, are not factors to be taken into mitigation. Therefore, financial needs arising from impoverished or disadvantaged background is not a basis for discounting sentence.

The Court of Appeal in Hong Kong has provided guidelines on sentence for offences of trafficking in dangerous drugs. For the drugs to which you were transporting, they were heroin hydrochloride and 6-monoacetylmorphone hydrochloride.

As is stated in the case of HKSAR v Kharim Mohmed Omari HCCC 265/2011, 6-MAM, as it is shortened to be called, has the same potency as heroin hydrochloride and should be treated no differently from heroin hydrochloride when determining sentence.

Therefore, the total quantity of drugs to which this court should sentence you upon is 256.84 grammes. In following the guideline case of R v Lau Tak Ming [1990] HKLR 370 that amount of drugs falls within the bracket of between 2000 and 400 grammes which calls for a sentence range of between 12 and 15 years’ imprisonment.

In the case of HKSAR v Abdallah [2009] 2 HKLRD 437, the court also took into account aggravating factors where the starting point should be enhanced if there is an aggravating factor.

In this case, there is an aggravating factor which is that of an international element involved in the commission of this offence, that is when drugs are transported across borders such as in this case` from Dar Es Salaam to Hong Kong.

In respect of the enhancement for the international element where the drugs are les than one kilogram, or below one kilogram, the amount of enhancement is less to the court’s discretion.

In the recent case of HKSAR Chung Ping Kun CACC 85/2014, the Court of Appeal stated that as a broad guideline for enhancement of drugs of below 1,000 grammes, the suggested level of enhancement for drugs up to 250 grammes was 6 months’ imprisonment, and between 250 and 500 grammes was 6 months to one year’s imprisonment.

Defendant, in the present case, taking the quantity of drugs involved in trafficking, I take a starting point of 12 years and 6 months’ imprisonment. In addition to that, I add a further 6 month enhancement to that starting point because of the international element. The sentencing point therefore becomes 13 years’ imprisonment.

You have pleaded guilty and that warrants a one-third discount to allow for your plea of guilty, and the resulting sentence is therefore 8 years and 8 months’ imprisonment to which you are so sentenced.