HKSAR v. NDUNGU RAHAB WANJIRU

CACC 64/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 64 OF 2016

(ON APPEAL FROM HCCC NO. 351 OF 2015)

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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 5 February 2016, the applicant pleaded guilty to one count of unlawfully trafficking in a dangerous drug, namely 1,131 grammes of a mixture containing 700 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 before Deputy Judge Campbell-Moffat SC (as Campbell-Moffat J then was) (“the judge”). On the same day, the judge sentenced her to 14 years and 4 months’ imprisonment.

2.  By way of a Notice of Application for leave to appeal against sentence (“Form XI”) filed on 2 March 2016, the applicant sought leave to appeal against her sentence.

The facts

3.  On 31 January 2015, at around 12:17 pm, the applicant, who was a Kenyan national, entered Hong Kong through Hong Kong International Airport.  She then took a 7-seater private car to the Mainland. At around 1:23 pm, the car was stopped for clearance at Shenzhen Bay Control Point and directed to the outbound private car search area.  A personal search was conducted on the applicant and, at about 1:40 pm, a Customs officer discovered part of a condom protruding from the applicant’s vagina.  The officer immediately suspected that the applicant was concealing dangerous drugs within her body.

4.  On being arrested and cautioned, the applicant admitted that an object had been placed inside her vagina by a man in Madagascar and she had been told to bring it to the Mainland.

5.  Later, the applicant was escorted to Tuen Mun Hospital where 20 sealed packets containing a total of 81 smaller packets, subsequently confirmed to be heroin hydrochloride, the subject-matter of the indictment, were recovered from her body.

6.  In a subsequent cautioned record of interview, the applicant asserted that, on 19 January 2015, she had gone to Madagascar from Kenya in order to purchase some kitchen appliances (for trading purposes).  Whilst in Madagascar, she lost all her money and thus sought financial help from a Kenyan friend who then introduced her to a man in Madagascar.  That man arranged for her to conceal the dangerous drugs inside her body and take them through Hong Kong for onward transmission to the Mainland.

7.  The estimated retail value of the dangerous drugs at the time was HK$849,000.

Mitigation

8.  The applicant was 34 years of age at the time and of clear record.  She had been born into a single-parent family.  Her mother had unfortunately been murdered when the applicant was 16 years old, as a result of which she left school in order to financially support the school fees of her younger brother.  In 2005 or 2006, her boyfriend had deserted her when she became pregnant and, thereafter, she had had to take care of her child by herself.  In 2006, her younger brother was killed in a traffic accident and was survived by a baby son, the responsibility for whose care the applicant also took upon herself.

9.  It was submitted that, having lost all her money in a robbery in Madagascar, she was inveigled into committing the present offence.

10.  It was further put on the applicant’s behalf that she had been an active volunteer for a charity known as the International Centre for Reproductive Health in Kenya.

Reasons for Sentence

11.  The judge said that she had “a great deal of sympathy for (the applicant’s) personal circumstances”; nevertheless, she noted that “none of the personal mitigation can help (the applicant) today because it is such a serious matter”.

12.  By reference to the sentencing guidelines set out in HKSAR v Abdallah[2009] 2HKLRD 437, the judge adopted a starting point of 20½ years’ imprisonment, which she enhanced by 1 year for the international element involved in the commission of the offence by bringing drugs across the border into Hong Kong.

13.  Giving the applicant a full one‑third discount for her guilty plea, the judge then passed a sentence of 14 years and 4 months’ imprisonment.

Grounds of appeal against sentence

14.  In a written note attached to her Form XI, the applicant simply stated that her sentence was too high.

15.  In written submissions dated 3 November 2016, the applicant accepted that the sentence she received was a fair one, but asked this Court to exercise mercy and compassion in the light of her personal circumstances.  She further said that whilst in prison, she had completed a bible correspondence course, thought over her conduct and was deeply remorseful.  She also claimed that, on 12 December 2015, certain people who had been looking for her in Kenya (in respect of the proceeds of the dangerous drugs) had assaulted those who were taking care of her daughter.

16.  The applicant further attached some photographs evidencing her previous charitable work.  She also produced a letter from Fr John Wotherspoon, whose campaign to warn East Africans and others about the dangers of trafficking drugs to Hong Kong is well known to these courts, and who can point, as perhaps an indicator of the success of his campaign, to the fact that there had only been one arrest from Kenya and one from Tanzania this year.  Fr Wotherspoon has said that he first came to know the applicant after she had been detained.  He acknowledged the applicant’s help in spreading his message via the website he had set up to discourage Africans from trafficking drugs to Hong Kong, as well as her efforts in engaging her immediate family and friends to support that campaign.  His letter on her behalf is dated 20 October 2016 and evidently cannot have been before the sentencing judge.  Indeed, the judge was not informed of her involvement in Fr Wotherspoon’s campaign during mitigation.

17.  Before us this morning, the applicant has emphasised her ongoing involvement in the campaign, and we have also heard from Fr Wotherspoon himself as to the extent of that participation.  We are grateful that he has taken the trouble to come to court today.

Respondent’s submissions

18.  Ms Rosa Lo SPP, on behalf of the respondent, has referred to the recent decisions in HKSAR v Akinyi Grace Sylvia(unrep., CACC 324/2015, 5 May 2016) and HKSAR v Odira Sharon Lensa(unrep., CACC 56/2016, 22 September 2016), where this Court has already said that it will be a matter for the executive, not the court, to determine whether any post-sentence assistance in combating drug trafficking by assisting, for example, in Fr Wotherspoon’s campaign (the campaign referred to before us being the same as in those two cases) should be taken into consideration and to what extent.  Ms Lo submitted that the same approach should be applied in this case.

19.  In view of both the quantity of narcotic and the international element involved in the commission of the offence, Ms Lo submitted that the imposition of the sentence of 14 years and 4 months’ imprisonment was neither wrong in principle nor manifestly excessive.  She submitted that extenuating family circumstances were not valid reasons for reducing an otherwise appropriate sentence passed in accordance with sentencing guidelines.

Consideration

20.  It would seem that the nature and extent of the assistance offered by the applicant to Fr Wotherspoon’s campaign was essentially the same as that provided by each of the two applicants in Akinyi and Odira. Of that assistance in Odira, the Court had this to say, at para’s 45-51:

“45. In HKSAR v Akinyi Grace Sylvia we had cause to consider that role and whether participation by a prisoner in Fr Wotherspoon’s campaign was a post-sentencing event that is appropriate for the Court of Appeal to have regard to or whether it is a matter that should be left to the executive.  In that judgment we referred to the Court of Appeal decision in HKSAR v Yeung Kwai Kuen where Stock JA, as he then was, examined the role of the Court of Appeal in adjudicating sentence appeals and made the very important point that the Court of Appeal generally looks at factors which prevailed at the date of sentence and does not “act as an administrative review, or a supervisory, tribunal to take into account factors since sentence.”

46. The court does, exceptionally, have regard to post-sentence events and the most commonly encountered exception is that of assistance to the law enforcement and prosecuting authorities.  But that is an exception which exists for very particular public interest policy reasons.  In other cases, such as where an appellant seeks the merciful intervention of the court, the principled approach is that articulated by Stock JA in Yeung Kwai Kuen when he said at page 408:

“Sentencing is, as has often been emphasised, an art, and not a mechanical application of rules or policy to the exclusion of the facts and justice of individual cases. It follows that there will be cases where a court will be moved to take action in an appellant’s favour by reason of post-sentence events because a failure to do so, by that court and at that stage, will defeat the ends of justice and the public interest.”

47. Applying that principled approach in Akinyi, we said at paragraphs 36 and 39:

“ The form of assistance rendered by this applicant does not require the intervention of this court at this stage. The assessment of the value of the applicant’s assistance is something which can be better made by the executive and there is still ample time before the applicant’s release for such an assessment to be made.

...

If such initiatives require the participation of convicted drug traffickers in order for them to be effective and serving prisoners take part in such programmes then it will be a matter for the executive to determine whether such assistance should be rewarded by use of the executive’s power of clemency.”

48. Adopting and applying the same principled approach to the circumstances of this applicant leads us to the same conclusion that there is nothing in her personal circumstances which requires us to act now in order to ensure that the ends of justice and the public interest are not defeated.

49. However, as we indicated in that case, we applaud Fr Wotherspoon’s efforts in disseminating information on Hong Kong’s drug trafficking laws.  Measures such as his that inform and discourage those in third world countries who are vulnerable to exploitation by the international drug trafficking syndicates, are of great benefit to Hong Kong.  Those that participate in such measures are likewise acting in the interests, and for the benefit, of Hong Kong.

50. But, it is apparent from Fr Wotherspoon’s testimony that the participation of an inmate in his campaign may vary from inmate to inmate.  Some may be more involved than others and for many the involvement may be a lengthy on-going one where the relatives of the inmate are enlisted to carry forward the campaign in the inmate’s home country.  At the sentencing stage this may require evidence to be called and an enquiry to be conducted by the sentencing judge in order to properly assess the involvement of the prisoner and the value of that involvement to Hong Kong.  Assessing the value to Hong Kong of the prisoner’s actions, within the framework of Fr Wotherspoon’s campaign, is a task which, in our view, the executive will generally be better equipped than the Court of Appeal to perform.

51. Consequently, we are of the view that the recognition that should be given to a serving prisoner for post-sentencing participation in Fr Wotherspoon’s campaign is a matter that is better determined by the executive.”

21.  We are bound by these decisions, which also apply to the circumstances before us.  Any recognition of the applicant’s efforts in support of Fr Wotherspoon’s campaign must be a matter for the executive.

22.  In our judgment, the starting point for sentence of 20½ years’ imprisonment in respect of 700 grammes of heroin narcotic was unimpeachable as a strictly arithmetical application of the relevant sentencing guidelines in Abdallah.  Nor can there be any complaint about the enhancement of 1 year imprisonment for the international element involved in bringing the dangerous drugs into Hong Kong, in accordance with the guidelines in HKSAR v Chung Ping Kun [2014] 6 HKC 106.  The notional sentence after trial of 21½ years’ imprisonment was, as the applicant herself recognises, correct.

23.  The applicant was given a full one-third discount for her plea, which again is unimpeachable, notwithstanding that it was not in fact a plea entered at the first available opportunity.  The applicant, like so many in her position, has an unfortunate personal background.  Inevitably, that will have posed, and will continue to pose, problems for her and her family in Kenya.  However, as we have said time and again, the courts cannot be deflected by extenuating personal circumstances from applying the law firmly and consistently in accordance with clear sentencing guidelines, particularly where the international trafficking of dangerous drugs is concerned.

24.  This application for leave to appeal against sentence must be refused.