HKSAR v. RASHIDI MDENGE RUKIA YUSUFU

CACC 187/2019

[2021] HKCA 1082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 187 OF 2019

(ON APPEAL FROM HCCC NO 311 OF 2018)

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J U D G M E N T

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1.  On 10 June 2019, following the applicant’s guilty plea to a single count of trafficking in a dangerous drug, namely 1.99 kilogrammes of a solid containing 1.69 kilogrammes of cocaine, Deputy High Court Judge Bruce (the judge)  sentenced her to 15 years’ imprisonment.

2.  On 21 June 2019, the applicant applied for leave to appeal against her sentence on the basis that it was too long.  This was followed on 21 January 2020 by an application to adduce fresh evidence in the form of a loan facility letter dated 15 August 2017 in the sum of 1.2 million Tanzanian shillings (about HK $4,000), which was issued to a borrower in a name other than that of the applicant.  She explained that she was also known by this name.  It was confirmed by the applicant that she is relying on this letter in order to undo the forfeiture order in respect of the cash found in her possession at the time of her arrest in the sum of US $1,870.

3.  On 16 November 2017, the applicant, a Tanzanian female national, having travelled on an international flight from Dar Es Salaam, Tanzania, via Addis Ababa, Ethiopia, smuggled the drugs into Hong Kong in a secret compartment of her hand luggage.  On her arrest at Hong Kong International Airport, she agreed to participate in a controlled delivery but it proved to be unsuccessful.[1]

4.  It was submitted in mitigation that the applicant, who was 26 years of age at the time of sentence, ran a small supermarket in Tanzania with an average income of US $400 a month.  She was in debt to the tune of about US $2,000 and could not keep up with her repayments.  It was for this reason that she got involved in smuggling the drugs into Hong Kong.[2]

5.  Applying the relevant sentencing guidelines, the judge adopted a starting point for this quantity of cocaine narcotic of 23 years and 6 months’ imprisonment, and further enhanced the sentence by 2 years for the international element.  He noted that the assistance rendered to the authorities by the applicant was of no practical use, and for that reason was not deserving of any discount.  However, he gave the applicant a substantial discount of 40% on the notional starting point, which included the one third discount for her plea of guilty and the remainder for her participation in the controlled delivery as he was of the view there was an element of danger and risk involved.  He also gave her a discount of 3 months for her participation in Father Wotherspoon’s anti-drug campaign.  This resulted in a sentence of 15 years’ imprisonment.[3]

6.  Having reviewed the facts and circumstances of the case and the sentence imposed by the judge, there is no merit in the applicant’s complaint that her sentence was too long.  Nor is there any basis on which to challenge the forfeiture order properly made by the judge in respect of the US dollars found in her possession at the time of her arrest.  It was submitted on the applicant’s behalf that she got involved in smuggling the drugs into Hong Kong because she was in financial difficulties and that she was to receive a reward upon delivery of the drugs.[4] It was contended that the US dollars were to be used by the applicant to buy clothing which she would sell on her return to Tanzania.  This was rejected by the judge and he accepted that the US dollars were to be used to facilitate her entry and stay in Hong Kong for the purposes of trafficking in the drugs.[5] 

7.  The applicant has requested that the US dollars be returned to her to assist her elderly mother and child in Tanzania.  The money is obviously tainted and as the old adage goes “crime does not pay”. This application is without merit.

8.  I refuse the applicant leave to appeal against her sentence, including the forfeiture order.  She is reminded of her right to renew her application for leave to the Court of Appeal, but she is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.