HKSAR v. KAIRU JOHN MBUGUA

CACC 419/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 419 OF 2008

(ON APPEAL FROM HCCC NO. 257 OF 2008)

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J U D G M E N T

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Hon Beeson J (giving the judgment of the Court):

1.  The applicant pleaded guilty in the Court of First Instance, before Deputy Judge Longley, to one charge of trafficking in dangerous drugs.  The drug was 888.28g of a mixture containing 440.38g of Heroin Hydrochloride.  He was sentenced to 10 years’ imprisonment and sought leave to appeal against that sentence on the ground that it was excessive in length.

2.  The facts which the applicant admitted on plea showed that he was a Kenyan national who had arrived in Hong Kong after flying from Delhi to Mumbai and then to Kuala Lumpur from whence he flew to Hong Kong.  On arrival the Immigration officers formed the view that the applicant was a “doubtful” visitor and interviewed him.  At the end of the interview the applicant was refused permission to enter Hong Kong.

3.  The applicant was taken for Customs clearance and during a search it became obvious that he was carrying something in his abdomen; on being asked “what is inside?” he admitted it was drugs.  The applicant was arrested and cautioned but made no other admission.

4.  Between 10.10 p.m. and 10.55 p.m. while still in Customs and Excise custody the applicant discharged 33 and 13 pellets of suspected dangerous drugs, and over the next 2 days, the applicant, who was taken to Queen Elizabeth Hospital, discharged a further 44 pellets; a total of 90 pellets.  The pellets were later certified by the Government Chemist to comprise the quantity of heroin particularized in the charge.  The estimated retail value at the time of seizure was $440,587.

5.  In mitigation counsel for the applicant told the judge that the drugs were destined for the mainland and that the applicant was to have been paid US$4,500 for the delivery.  His counsel sought leniency praying in aid the applicant’s comparative youth, his impoverished family circumstances and political difficulties in Kenya.

6.  The applicant, who appeared in person, produced in addition a hand-written report setting out matters he wished the court to take into account.  These related to the political chaos in Kenya, his inability to get work, the problems with his family and his responsibility towards his family members.  He told the court that he had been offered a job in India which turned out to lead to this particular job of carrying the drugs.  The matters raised by the applicant in this lengthy report were all put before the sentencing judge and the applicant confirmed that.  Although the matters raised in the report engender a great deal of sympathy, they are not truly mitigatory of the offence.

7.  When sentencing the judge bore in mind the applicant’s age of 25 years and that, as far as was known, he had not been in trouble before.  The judge accepted that the applicant was a ‘small cog’ who had been made use of by others.  He noted the details of the mitigation relating to the applicant’s family and political circumstances, while recognizing, correctly, that such matters were of little weight, seen, as they had to be, against the great evil of drug trafficking.  The only real mitigation was the applicant’s plea of guilty.

8.  The Lau Tak-ming sentencing guidelines set a range of 15-20 years’ imprisonment for a quantity of heroin between 400g and 600g.  The relevant narcotic quantity was 440.38g and the judge adopted a starting point for sentence at the lowest end of the range which was 15 years.

9.  He gave the applicant the full 1/3 discount for his early plea and imposed a sentence of 10 years’ imprisonment.

10.  Having considered the facts of the case, the judge’s reasons for sentence and the sentencing guidelines we are satisfied that this sentence was neither excessive, nor wrong in principle.  The applicant did not advance any cogent reasons to show why this court should interfere with or reduce the sentence.  He had chosen to come to Hong Kong with a very substantial quantity of heroin in his stomach - he could count himself fortunate that he had not died from the ill-effects of so doing.

11.  Although we realise that the applicant is unlikely to agree with us, we consider that the judge, in taking a starting point of 15 years, was treating the applicant with a significant degree of leniency.  The applicant had been caught trying to import a large quantity of drugs into Hong Kong.  There was no support for his claim that it was destined for the mainland.  If the judge had taken a starting point several years higher than 15 years to mark the importing element of this offence, as he could have done, we would have had difficulty in finding such a sentence excessive or wrong in principle.

12.  Accordingly the application for leave to appeal against sentence is dismissed.