HKSAR v. MUGALA, KEVINA BUWEMBO

CACC 56/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 56 OF 2013

(ON APPEAL FROM HCCC NO. 382 OF 2012)

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JUDGMENT

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

Introduction

1.  The applicant was convicted on her own plea of one count of trafficking in a dangerous drug, namely 1,100.19 grammes of a solid containing 660.54 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  This offence was committed on 23 April 2012 and the applicant appeared in the High Court on 25 January 2013 before Deputy High Court Judge A Wong (“the judge”) when she pleaded guilty to the offence and on the same day was sentenced by the judge to 14 years’ imprisonment.  She now applies for leave to appeal her sentence.

The Offence

2.  The applicant admitted a Summary of Facts which revealed that on 23 April 2012 she arrived in Hong Kong from Entebbe, Uganda, via Dubai, on flight EK 382 of United Emirates Airlines.  She was intercepted for customs clearance at the Customs Arrival Hall of the Hong Kong International Airport.  She was suspected of having internal drug concealment and was escorted to hospital for a medical examination.  An X-ray confirmed that she had foreign objects inside her body cavity and she subsequently discharged a total of 95 pellets containing the drugs the subject of the count in the indictment.  In a subsequent cautioned interview she admitted that she had agreed to traffic in the drugs in return for US$2,000.  The market value of these drugs as at April 2012 was HK$1,286,122.11.

The Mitigation

3.  At her sentencing hearing her counsel tendered a number of letters written on behalf of the applicant and one written by herself to the Court. These letters demonstrated remorse and portrayed the applicant as a devoted Christian who had hitherto led a blameless life.  Her counsel emphasised that she had a clear record in Hong Kong and that on his instructions she had never broken the law of any other jurisdiction.  All of this went to establishing she was a person of previous good character who was remorseful for her conduct.

4.  Evidence was also adduced of the fact that she is suffering from AIDS and has been diagnosed as HIV positive since 2006, before she came to Hong Kong.  She is currently under treatment for this disease whilst in the custody of the Correctional Services Department.  She also suffers from a vitamin B12 deficiency which may be associated with her AIDS.

5.  Her counsel referred the judge to the relevant sentencing authorities and suggested that a starting point of 20 years’ imprisonment was appropriate for this quantity of cocaine.

The Reasons for Sentence

6.  After referring to the circumstances under which the offence was committed, the judge referred to the personal circumstances of the applicant, noting that she is a citizen of Uganda, was then 39 years of age, married with seven children aged then from 6 to 22.  He noted that her husband is an agriculturist and that two of their children are studying in university, three at high school and two at primary school.  He also noted her claim to being a person of good character who was remorseful for her actions.  He referred to her assertion in a letter she wrote to the Court that she had committed the offence out of financial need.

7.  The judge went on to deal with the fact that the applicant is suffering from AIDS and that as a result he was being asked to be merciful in his treatment of her.  He gave consideration to the applicant’s health condition but noted that there were Court of Appeal authorities which said that the fact that an offender is HIV positive or has a reduced life expectancy is not generally a reason which would affect the Court’s sentence.  Likewise, in respect of the applicant’s position as a foreigner and any additional hardship that status might cause to her in serving a prison sentence in Hong Kong.

8.  The judge referred to the relevant Court of Appeal authorities in relation to trafficking in large amounts of cocaine, namely R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437.  He indicated that he would enhance her sentence by 12 months to allow for the international element and to take a final starting point of 21 years which he then went on to discount by one-third for the applicant’s guilty plea.

9.  He then considered whether any of the matters that had been advanced on the applicant’s behalf would entitle her to any further discount of her sentence and concluded that they would not.  Discounting his final starting point of 21 years by one-third, he reached a sentence of 14 years’ imprisonment and this was the sentence he imposed upon her.

Grounds of Appeal

10.  The applicant is unrepresented and there are no formal Grounds of Appeal filed by her or on her behalf.  However, the applicant has written to the Court a letter dated 28 April 2013.  In this letter she refers to the fact that she is now 40 years of age and the mother of six children, two of whom are her biological children and four of whom are her step children.  She refers to the fact that she never concealed anything from the authorities and honestly revealed her involvement in drug trafficking.  She said she was lured into the commission of the offence by a lack of finance and claims to have not previously committed any offence in Hong Kong or elsewhere.  She apologizes to the Court and expresses remorse for her actions.

11.  She also discusses in some detail her medical condition and claims to be entering an advanced stage of AIDS whereby she is prone to develop different opportunistic diseases.  She expresses concern that her fellow inmates might be infected by her disease and refers to the fact that she continues to lose strength and weight with each passing day.  This she attributes partly to the diet she is currently on which she said is not food to which she is accustomed. She also refers to the fact that when she was in Uganda she had access to herbal medicines which she used to take as a supplement to boost her immune system, to give her energy and to strengthen her appetite.  She said her fellow inmates are questioning her as to why she is losing weight everyday and she feels that they are becoming suspicious of her.  She is fearful of being placed in isolation because of her disease.

12.  In light of all these matters she asks for leniency from the Court and for a reduction of sentence.  She makes it clear that she is not seeking a reduction in sentence on any legal grounds but only on humanitarian grounds.

13.  Before us today she confirmed that her plea is based upon humanitarian grounds and she confirmed the matters to which she alluded in her letter of 28 April.  She also said that her fellow inmates did not wish to associate with her as she is HIV positive.  She also brought to our attention that in her home country of Uganda her disease is better accepted and that if she was serving her sentence there she would be less depressed and would be on a more nutritious diet.  She indicated that she wished to serve the balance of her sentence in Uganda.

Discussion

14.  We have carefully examined the judge’s Reasons for Sentence and it is clear from them that he has not erred in any way in his calculation of sentence.  He has correctly identified an appropriate starting point for this quantity of cocaine, enhanced it for the international element, in accordance with legal authority, and then given the usual one-third discount for her plea of guilty. His reasoning is faultless.

15.  Essentially, the complaints of the applicant are wholly non‑legal in nature and she cannot, and does not, seek to identify any error by the trial judge.  She is simply throwing herself upon the mercy of this Court and asking us to reduce her sentence on humanitarian grounds.

16.  As sympathetic as the Court is to the applicant’s personal circumstances it cannot, by reason of such sympathy alone, accede to her request for a reduction in sentence.  It has been long stated in this jurisdiction that ill‑health will not, by itself, usually be a sufficient justification for a reduction in sentence.  This is particularly so in respect of the offence of drug trafficking, where an offender’s personal circumstances usually play a secondary role to the need for a deterrent sentence.  Nor can the applicant’s current state of health be a sufficient justification for the Court granting to her a reduction of sentence as an act of mercy.  For a discussion of the relevant principles relating to ill-health as mitigation, especially in drug trafficking cases, and the intervention of the Court of merciful grounds, see HKSAR v Bayanmunkh [2012] 2 HKC 233.

17.  We accept that the accumulation of her personal circumstances together with the fact that she is a foreigner, is likely to make her sentence here harder for her to endure.  But that also is not a matter which justifies this Court in interfering with an otherwise appropriate sentence.

18.  However, there is an alternative remedy available to the applicant.  In different cases over the years this Court has emphasized that claims of the kind made by this applicant for the merciful intervention of the Court are more appropriately addressed to the executive, now in Hong Kong the Chief Executive of the HKSAR. It is to this office that the applicant should address her petition for clemency and her request for her transfer to Uganda so that she might serve out the balance of her sentence there.

Conclusion

19.  This is not an appropriate case for this Court to intervene on humanitarian grounds and as an act of mercy to reduce the applicant’s sentence.  The application for leave to appeal against sentence is dismissed.