HKSAR v. DARESA, MARIAM GUMA

CACC 155/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 155 OF 2012

(ON APPEAL FROM HCCC NO. 17 OF 2012)

____________

____________

______________

JUDGMENT

______________

Hon McWalters J (giving the judgment of the court):

Introduction

1. On 13 January 2012 the applicant pleaded guilty at the Eastern Magistracy to a single charge of trafficking in dangerous drugs, namely 899.1 grammes of a mixture containing 501.14 grammes of heroin hydrochloride and 100.32 grammes of monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  As a result of that plea she was committed for sentence to the High Court where she appeared on 29 March 2012 before Mr Justice Saw.  On that day she was sentenced to 14 years imprisonment.  She now seeks leave to appeal that sentence.

The Offence

2. The applicant is a 43 year old Tanzanian female who, on 14 June 2011, arrived at Hong Kong International Airport on a flight from Addis Ababa. She was taken for customs clearance when she was denied permission to land.  A search of her baggage did not reveal anything but during a search of her person a transparent plastic bag containing suspected dangerous drugs was found inside her underpants.  Suspecting internal concealment the applicant was sent to Queen Elizabeth Hospital where an examination of her confirmed the presence of foreign objects in her body.  She subsequently discharged some 70 pellets containing the drugs the subject of the charge.

3. Part of the drugs were monoacetylmorphine hydrochloride but nothing turns on this.  The forensic scientist who analysed the drugs confirmed that the monoacetylmorphine hydrochloride has a similar potency to heroin hydrochloride in its narcotic properties.  The dangerous drugs in which the applicant was trafficking had an estimated retail value at the time of their seizure of HK$607,791.60.

The Reasons for Sentence

4. The judge correctly applied the sentencing guidelines for heroin for the amount in which the applicant trafficked.  This gave him an initial starting point of 20 years which he then enhanced by 1 year to allow for the international element inherent in her commission of this offence.  This resulted in a final starting point of 21 years which he then discounted by one third to allow for the plea of guilty.  In this way he arrived at a sentence of 14 years imprisonment

Grounds of Appeal

5. The applicant is unrepresented and her application for leave to appeal her sentence is in the form of a letter attached to the application for leave standard form.  In that letter she expresses remorse for her wrong doing and seeks the merciful intervention of this court in order to obtain a reduction of sentence.  The basis of her claim for mercy is that she is a widow with four children to support and elderly parents who are in ill‑health and immobile.  She is responsible for their welfare and medical expenses.  She also bases her appeal upon her own ill-health.  She said that she is suffering from kidney problems which cause her to have swollen legs and limit her movement.  She said that her health is deteriorating day by day.

Discussion

6. The applicant does not complain about the sentence that was imposed upon her, nor could she do so.  The trial judge applied correct sentencing principles in arriving at his starting point of 20 years imprisonment for the quantity of narcotic which she had in her possession.  His enhancement of that starting point by 1 year to allow for the international element that was involved in her offence is consistent with authority and in arriving at a final sentence of 14 years he granted her the full one-third discount for pleading guilty.

7. But as we have said, her application for leave to appeal does not complain of any error by the sentencing judge; rather it is an appeal for mercy.

8. As the applicant is from another country it is not possible to verify the facts on which she bases her application for leave to appeal her sentence. Nevertheless for the purpose of determining her application for leave to appeal we shall assume the facts as stated by her to be correct.  Unfortunately those facts are by no means unique for persons in the applicant’s position.  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.

9. As long ago as in the leading case of R v Lau Tak Ming [1990] 2 HKLR 307 this court warned that the gravity of the offence of unlawfully trafficking in dangerous drugs was such that many mitigating factors would carry little weight.  At page 386F-G of the report the court said:

“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.”

10. 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.”

11. 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.

12. As for the applicant’s medical condition the law is well settled that ill-health is not a basis for reducing an otherwise proper sentence.  All her medical problems can be properly attended to by the prison authorities and she will receive whatever treatment she may need within the prison system.

13. The application for leave to appeal against sentence is dismissed.