HKSAR v. SHAMBE SHAMSA GULAM

CACC 59/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 59 OF 2012

(ON APPEAL FROM HCCC NO. 230 OF 2011)

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  She pleaded guilty at Eastern Magistrates’ Court on 24 June 2011 and was committed to the Court of First Instance for sentence.  On 23 August 2011, Deputy High Court Judge Stuart-Moore sentenced her to a term of 16 years imprisonment.

2.  On 8 February 2012 she made an application for an extension of time in which to appeal against sentence.  That application was heard on 27 April 2012 by Lunn JA who granted the application.

Background to the Offence

3.  On 10 January 2011 the applicant, a 37 year old Tanzanian female, arrived at Hong Kong International Airport on a flight from Addis Ababa.

4.  She was selected for customs clearance and as a search of her body was about to be conducted she said to one of the officers, “please I have drugs”, and then pointed to her waist.  A body search was then conducted and the applicant was found to have drugs packed around her waist.  She was also found to have a sock containing drugs in the groin area and more drugs were found concealed in her brassiere.  Altogether there were 115 packets containing drugs concealed about the applicant’s person.

5.  The drugs were later examined by the Government Chemist and found to be:

(i)     46 packets containing a total of 0.58 kilogrammes of a powder containing 0.45 kilogrammes of cocaine; and

(ii)    69 packets containing a total of 0.87 kilogrammes of a mixture containing 0.53 kilogrammes of heroin hydrochloride and 0.15 kilogrammes of monoacetylmorphine hydrochloride.

The drugs were therefore a combination of 680 grammes of heroin and 450 grammes of cocaine.  As both of these drugs are treated similarly for sentencing purposes, the two can be combined to produce a total narcotic content of 1.13 kilogrammes.

6.  The applicant was subsequently interviewed by Customs Officers and in the course of that interview she informed them she had been given the packets of drugs in Tanzania to swallow but after unsuccessfully attempting to do so she had packed them about her body.  She said that on arrival at the airport she had become scared when the Customs Officer called her to go inside the Customs room and so she had then confessed to him that she was carrying drugs.  She said that she was expecting to receive US$10,000 as a reward for her drug trafficking on her return to Tanzania.

The Reasons for Sentence

7.  The sentencing judge was correct in combining the two types of drugs into one total volume of narcotic of 1.13 kilogrammes.  The sentencing guideline for this quantity of narcotics was laid down by the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.  In this case the Court of Appeal said that for an amount of 600 - 1,200 grammes the sentencing range should be 20 - 23 years imprisonment.  The Court also said that where there is present an international element then it should be regarded as an aggravating feature for which the sentence should be enhanced.  The Court said that if the quantity of narcotic was above 1 kilogramme the enhancement should be not less than 2 years imprisonment; below 1 kilogramme the amount of enhancement was within the trial judge’s discretion.

8.  The sentencing judge referred to the decision of the Court of Appeal in Abdallah and adopted a starting point of 22 years imprisonment.  He then enhanced this starting point by 2 years to take into account the aggravating feature of the international element.  That brought him to a sentence of 24 years imprisonment which he then discounted by one third to allow the applicant the full credit for her timely plea of guilty.  This reduced the sentence to 16 years imprisonment and that is the sentence that he imposed.

The Grounds of Appeal

9.  The applicant has written to the court two letters, one dated 2 February 2012 and the other one dated 29 April 2012.  In these documents the applicant does not advance any legal grounds of appeal.  Indeed in her most recent letter of 29 April she said that she does not dispute that the sentence imposed on her was in order and according to the Hong Kong Guidelines.  Nevertheless she feels the effect of the sentence on her to be crushing and she is concerned at the impact her absence from her family will have on them, especially on her children as they grow up.  She is now 38 years of age and a widow.  She has four children and an elderly grandmother for whom she was caring before she embarked on her journey to Hong Kong.  Before us today she has not added to that which is contained in her letters.

Discussion

10.  As sad as the applicant’s current predicament is, it is nevertheless one that she has brought upon herself.  As much as the court may sympathise with the difficulties that her incarceration brings to her children and other members of her family dependent on her, that is not something to which the court can properly have regard when assessing the appropriateness of the sentence imposed upon her.  This court has repeatedly said that sympathetic personal circumstances of drug traffickers or their extended families cannot be a reason for reducing an otherwise appropriate sentence.

Conclusion

11.  There is no substance to this appeal as it is based entirely upon a plea for mercy; a plea which in the circumstances of this case the court cannot heed. The application for leave to appeal against sentence is therefore dismissed.