HKSAR v. ESTHER WANJIKU KINYANJUI WAMAE AND ANOTHER

HCCC107/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 107 OF 2009

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

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COURT:    Stand up, please.  The two of you are to be sentenced for trafficking in dangerous drugs, having each arrived in Hong Kong from Dubai on Emirates flights, Wamae, D1, on 7 August 2008, and Mburugu, D2, on 8 August 2008.  Each of you was in possession of a bag which had a false compartment containing dangerous drugs, substantial quantities of heroin.  Each of you admitted that you were being paid money to transport the bag that you were carrying.  You were not known to each other, I am told, though you appeared to have been recruited by the same trafficking syndicate. 

     In your case, Wamae, the bag contained 2,259 grammes of a mixture, of which 1,600 grammes was heroin.  You said that you had been offered US$3,000 to bring a bag from Dubai to Hong Kong.  The heroin is said to have had a street value of about HK$1.3 million. 

     You, Mburugu, said that a man called Papa had given you the bag which contained 2,277 grammes, of which 1,513 grammes was heroin.  You said you were offered US$4,100 as a reward to bring the bag to Hong Kong.  The value of the drugs is said to be about HK$1.6 million.  I understand there may have been an error in calculating the value in D1’s case, hence the lower sum for a larger quantity.  But it is of no significance in deciding sentence. 

     Now, you have been told that sentences in Hong Kong for trafficking in dangerous drugs are based on guidelines laid down by the Court of Appeal to ensure that all traffickers are sentenced on approximately the same basis.  It is not a question of the court hardening its heart to individual circumstances.  But if sentences are imposed on an inconsistent basis as between different traffickers, it gives the appearance of being unfair and it causes resentment.  Sentences are based on the quantity of dangerous drugs, that is the narcotic quantity, 1,600 grammes in your case, Wamae, and 1,500 grammes in your case, Mburugu. 

     In all the circumstances, I do not regard the difference between these quantities as being significant.  I judge the appropriate starting point for these quantities of heroin to be 25 years’ imprisonment, taking into account the international element which has, for some years, been recognised as an aggravation of the offence.  That is the sentence before discounts for mitigation.  The effective mitigation in cases such as this is the plea of guilty. 

     I appreciate that there are individual aspects to your cases which are of great significance to you, not least that you each have families in Kenya from whom you will inevitably be separated for many years.  Neither of you is to be regarded as a leading member of the trafficking syndicate.  You were couriers acting for reward.  Your mitigation is taken into account in the discount that I will apply to that starting point.  That discount is one-third, which means that I am reducing the sentence by 8 years 4 months in each of your cases.  So you can see it is a very big discount. 

     Therefore the sentence imposed on each of you is one of 16 years and 8 months imprisonment. 

     I need to say that there is a recent case in the Court of Appeal called Abdallah Abbas, in which the court set out new guidelines for very large cases of trafficking in heroin, such as this.  The judgment in that case, which was published in March 2009, expressly states that it does not have application to cases like this one which occurred before that date.  However, Abdallah Abbas is an authority which codifies what was the existing position.  In the concluding paragraph of that case where the court pointed out that new guidelines do not have retrospective effect, the court remarked that a sentence imposed upon the appellant in that case would have been exactly the same as that imposed by the trial court if the new guidelines had been applied.  And the court said that the sentence imposed in that case, 25 years for 1,200 grammes of heroin, accorded with all modern judicial authority which has addressed the quantities of drugs similar to that involved in the case, as well as the aggravating feature of an international element in the commission of the offence.  Thus although Abdallah Abbas does not have retrospective effect, nevertheless what was stated there by the Court of Appeal does provide a useful formula for sentencing in cases such as this which pre-date it.

     So I come back to say again that the sentence I am imposing on each of you is one of 16 years and 8 months’ imprisonment.