HKSAR v. MWILA ZAHRA YAKUBU

CACC 189/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 189 OF 2013

(ON APPEAL FROM HCCC NO 131 OF 2011)

_________________

_________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Barnes J (giving the Reasons for Judgment of the court):

Introduction

1.  The applicant was the 3^rd defendant in the High Court Case.  She pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 19 July 2011, she was sentenced by Hon V. Bokhary J (the judge) to 16 years imprisonment.

2.  On 3 June 2013, the applicant applied for leave to appeal against sentence out of time.

3.  At the conclusion of the hearing, we dismissed the application and indicated that we would give our reasons later, which we now do.

Summary of facts

4.  The facts can be shortly stated.  The applicant arrived at the Hong Kong International Airport on 30 August 2010 from Dubai.  She swallowed 126 pellets containing 1471.51 grammes of a mixture containing 731.83 grammes of heroin hydrochloride and 334.18 grammes of monoacetylmorphine hydrochloride prior to arrival and had therefore imported the dangerous drug into Hong Kong.  The street value of the dangerous drug was estimated to be HK$927,051.

Background of and mitigation for the applicant

5.  The applicant was 35 at the time of the hearing.  She had no previous conviction.  In mitigation, the judge was told of her background.  She was the only surviving daughter of her parents and her father passed away when she was 9, leaving her to care for her aged and sick mother.  She had three young children (aged 12, 10 and 4) but the father of the children died in 2007, leaving her to take care of the children.  The applicant was introduced to someone who promised to pay to educate her children and to treat her mother’s illness.  She was duped into believing that and agreed to traffic dangerous drug for that person.  The judge was also told that since her arrest, the applicant never received any reward.  She was remorseful and worried about her family.

Reasons for Sentence

6.  The judge adopted a starting point of 22 years and enhanced it by 2 years to take into account the importing aspect of the case, which was then reduced to 16 years to reflect the applicant’s guilty plea.

Grounds of appeal

7.  The applicant, who is not legally represented, made a submission dated 29 May 2013 (which was attached to the application form dated 3 June 2013), saying that she could not cope with the weather here in Hong Kong and suffers from High Blood pressure and other ailments.  She asked for a reduction of the long sentence she is serving.

8.  The applicant made further written submissions dated 7 September and 16 December 2013 respectively.  She apologized for what she had done and pointed out that she has not committed any offence before.  She expressed remorse and reiterated that her health condition was affected by the weather here.  She said she was brought up in a hot coastal region of Tanzania. She made it clear that she did not have any grounds of appeal.  She said she is now studying in prison and she plans to advise and help others not to get involved in drug trafficking.  She asked this Court to help her to reduce the sentence.

9.  Before us, she handed up another written submission, which basically reiterated what she had already mentioned earlier.  She gave no reason for the delay in her application.

Discussion

10.  As this application for leave to appeal against sentence is made out of time, this Court has to consider the length of delay, the reason for such delay and the grounds of appeal before we can decide whether leave should be granted (see HKSAR v Oh Chun Kit [2013] 1 HKLRD 437).

11.  The delay of one year and 10 months is a long time.  The applicant has not offered any ground to show that such a delay is reasonable.

12.  According to the sentencing guidelines for the trafficking of heroin in R v Lau Tak Ming & Ors [1990] 2 HKLR 370,amount over 600 grammes fell into the “very large quantities” category and the appropriate starting point is one with “an upward increase” from 20 years.

13.  In HKSAR v Abdallah [2009] 2 HKLRD 437, further new guidelines were laid down for the trafficking of over 600 grammes of heroin.  The narcotics involved in this case amounts to 1066 grammes.  According to the new guidelines, such an amount falls into the band of between 600 and 1,200 grammes, with the appropriate starting point being one between 20 to 23 years.  Importing dangerous drug into Hong Kong is an aggravating factor which warrants an enhancement.  When the amount is over one kilogramme, the enhancement would not normally be less than two years (see para 43 of the judgment).

14.  Taking into account all the circumstances of this case, the judge’s adoption of a 22-year starting point, and enhanced it by 2 years to take into account the aggravation of importation, was appropriate.  The applicant was given the full one-third discount for her plea of guilty, which was the only mitigation that could be taken into account as her personal background and the financial hardship she faced did not amount to mitigating factors.  The sentence of 16 years was therefore neither wrong in principle nor manifestly excessive.

15.  For these reasons, we dismissed the applicant’s application to appeal against sentence out of time.