HKSAR v. MUYONGA JACQUILINE ANDALO

CACC 305/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 305 OF 2009

(ON APPEAL FROM HCCC NO. 171 of  2009)

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BETWEEN

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JUDGMENT

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Hon Wright, J. (giving the judgment of the Court):

1.  The applicant, a 37 year old native of Kenya, seeks leave to appeal the sentence of 11 years 8 months imprisonment imposed upon her by His Honour Judge Geiser sitting as a Deputy Judge of the High Court after her plea of guilty to a single charge of trafficking 505.35 grammes of heroin hydrochloride on 30 June 2008. She arrived from Nepal at Hong Kong International airport. When she was searched the drugs were found in a sock in her underwear.

2.  The judge correctly recognized that the quantity of drugs fell into the fifth band set out LAU Tak-ming and Ano [1990] 2 HKLRD 370, which indicates a sentence of between 15 and 20 years imprisonment for a quantity between 400 and 600 grammes. The judge took the view that the appropriate starting point was one of 17.5 years imprisonment: that was correct.

3.  Her personal circumstances, including the fact that she had recently given birth in November 2008, were made known to the judge as was the fact that, driven by her pregnancy and poverty, she had agreed to carry the drugs for a reward of US$4000. She has told us nothing today which was not before the judge. The judge indicated that he felt himself unable to afford the applicant any discount in addition to the one which her plea of guilty attracted.

4.  In our view he was correct in that approach. Moreover, given that there was an international element in the trafficking the judge would have been entitled to have taken a higher starting point. The applicant thus enjoys the benefit of a sentence lower than otherwise would have been appropriate.

5.  There is no merit in the application which is dismissed.