HKSAR v. KESSY UPENDO ERNEST

CACC448/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 448 OF 2011

(ON APPEAL FROM HCCC NO. 258 OF 2011)

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J U D G M E N T

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Saw J giving the judgment of the court :

1. On 15 July 2011 the applicant pleaded guilty in the Magistrates Court to a charge of trafficking in a dangerous drug contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap. 134.  On that day she was committed to this court for sentence.

2. On 3 October 2011 she was sentenced by Mr Justice McWalters to be imprisoned for a period of 13 years and 6 months.

3. This is her application for leave to appeal her sentence.

The Facts

4. The applicant is a Tanzanian national.  On 6 January 2011 she was intercepted by officers of the Customs and Excise Department at the Hong Kong International Airport because it was suspected that she might be trafficking in dangerous drugs.

5. Those suspicions proved to be correct.  The applicant having been transferred to Queen Elizabeth Hospital was x-rayed and this confirmed the presence of foreign objects in her body. She subsequently discharged a total of 100 packets the contents of which upon analysis by the Government Chemist was determined to be 1.17 kilogrammes of a mixture.  That mixture itself contained :

(1)  0.39 kilogrammes of heroin hydrochloride; and

(2)  0.25 kilogrammes of monoacetylmorphine hydrochloride.

6. After the applicant had been arrested she told the Customs and Excise officers that she knew that what she had brought into the Hong Kong SAR was dangerous drugs. She said that she had done this in order to obtain money to raise her son.  She was to be paid US$3,000.

7. It was an admitted fact that the drugs trafficked by the applicant had a street value in excess of HK$850,000.

8. It was accepted in the summary of facts admitted by the applicant that the heroin hydrochloride and the monoacetylmorphine hydrochloride contained in the packets trafficked were both salts of esters of morphine for the purposes of the Dangerous Drugs Ordinance.  They were both narcotic analgesics of similar potency and no issue was taken before the judge that the appropriate sentencing guidelines were those provided in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.

9. The judge took a starting point for sentence after trial of 20 years and 6 months’ imprisonment.  He arrived at this by reference to the quantity of the narcotic in the mixture namely 640 grammes.  Taking an initial starting point of 20 years the judge enhanced that to 20 years and 6 months because of the international element in the applicant’s offence.  The applicant was given a full one-third discount from that starting point and was sentenced to 13 years and 6 months’ imprisonment.

This Application

10. In her written grounds of appeal dated 10 April 2012 the applicant has stated that she is pleading for mercy and forgiveness from this court; that it was not her intention to break the Laws of Hong Kong and that the sentence is very long and very harsh.  She also complained of the way in which the Judge calculated the weight of the drugs for sentencing purposes.

11. As to this latter matter we can say at the outset that there was no error on the part of the judge.  It was admitted in the summary of facts that the dangerous drugs described in the particulars of the offence were both salts of esters of morphine and were of similar potency.  No valid distinction could be made in the instant case for sentencing purposes between the two salts of esters of morphine.

12. As to the other matters raised by the applicant in her written grounds of appeal these were that :

(1)  she failed to appreciate the seriousness of the offence when she agreed to bring the dangerous drugs to Hong Kong; and

(2)  the length of her sentence will bring hardship upon her own family especially her own son and her father.

13. As to the applicant’s family circumstances, Mr Lui on behalf of the respondent refers us to the Court of Appeal’s recent decision in HKSAR v Lkhaijav Bayanmunkh CACC320/2011 (unreported).  In that case, this Court said at paragraph 14 :

“How far a court can go in extending mercy to an offender in achieving a balanced sentence will inevitably vary from case to case, taking account of the crime the offender has committed and his personal circumstances. As we have already made clear drug trafficking is a crime where an offender’s personal circumstances are not given the same weight that they might be given for other crimes. Thus a just sentence is arrived at by a proper application of legal principle balanced with a consideration of personal circumstances. Justice will not normally be served by departing from proper sentencing principles as a sympathetic response to a prisoner’s personal circumstances. We qualify this last statement because we recognise that our courts are not just courts of law but courts of justice and circumstances may arise, usually post‑sentence, where justice and the public interest require an immediate response which only the court can give.”

14. There is nothing in the circumstances of the applicant or in the circumstances of the commission of the offence which required us to depart from established sentencing guidelines and principles.

Conclusion

15. We are satisfied that there is no merit in the matters advanced by the applicant. The sentence imposed was entirely proper in all of the circumstances.  The application for leave to appeal is dismissed.