HKSAR v. KISAMO DIANA SEMALI

HCCC 307/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 307 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant has been convicted on her own plea of one charge of trafficking in a dangerous drug. The guilty plea was entered at the earliest opportunity at the Eastern Magistrates’ Court on 24 July 2015.

The Particulars of Offence provide that on 18 February 2015, at the Customs Arrival Hall, Hong Kong International Airport, Lantau Island in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 1.25 kilogrammes of a solid containing 702 grammes of cocaine.

The Summary of Facts admitted by the defendant provides that at about 1330 hours on 18 February 2015, the defendant who arrived from Bujumbura, Burundi via Addis Ababa, Ethiopia, was intercepted by PW1 at the Green Channel of the Customs Arrival Hall B of the Hong Kong International Airport for Customs Clearance.

The defendant’s personal belongings weresearched and no irregularity was detected. On suspicion that the defendant had internal concealment of drugs, she was escorted to the North Lantau Hospital for a medical examination. At about 1640 hours the same day, a medical officer confirmed the presence of foreign objects inside the defendant’s body cavity.

The defendant was arrested and cautioned.

Under caution, the defendant admitted swallowing drugs in Bujumbura and said she would receive a reward of US$6,000. She did not know the kind of drugs she had swallowed.

At 1725 hours the same day, the defendant discharged 22 packets of suspected dangerous drug inside the Disabled Persons Toilet of the Accident and Emergency Department of the North Lantau Hospital. A narco test gave a positive reading for cocaine and she was cautioned once again.

Subsequently, the defendant was transferred to the Queen Elizabeth Hospital for further medical examination and discharge of drugs. In total, 80 packets of suspected cocaine had been discharged by her from the time she was taken to the North Lantau Hospital to the time of her discharge from the Queen Elizabeth Hospital on 23 February 2015.

The suspected dangerous drug was examined by a Government Chemist and found to consist of 1.25 kilogrammes of a solid containing 702 grammes of cocaine.

The street value of the dangerous drugs was estimated at $1,236,250.

The travel movement record provided by the Hong Kong Immigration Service showed that the defendant last arrived at the Hong Kong International Airport at 1312 hours on 18 February 2015.

In the Summary of Facts, the defendant expressly admitted that at all material times, she unlawfully trafficked in the dangerous drug as particularised in the charge against her.

By way of personal background, the defendant is 45 years of age. She was born in Tanzania in December 1969. She has received education up to college level. She is a widow with a son. Prior to her arrest, she was a business woman trading in clothing.

The defendant has a clear record.

By way of mitigation, Mr Oliver Davies urged upon the court to take into account her guilty plea, which was entered at the earliest opportunity, and that the defendant has been co-operative ever since her arrest.

Mr Davies also gave detailed background information concerning the defendant and the reasons for her committing the present offence.

In essence, Mr Davies submitted to the court that the defendant committed the present offence out of desperation. The death of her husband left her in a very difficult position financially. She had to raise an extended family of five children. She became heavily in debt.

A mitigation letter from the defendant has been handed up to the court.

However, as has been pointed out by the courts on many previous occasions, personal and familycircumstances of a defendant offer little mitigation in a serious case of drug trafficking, where severe deterrent sentences are warranted in order to protect the public.

The defendant has been convicted on one charge of trafficking in a dangerous drug, namely 1.25 kilogrammes of a solid containing 702 grammes of cocaine.

Sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin.

In the case of HKSAR v Abdallah [2009] 2 HKLRD 437, it was held by the Court of Appeal that for trafficking in 600 to 1,200 grammes of heroin, the guideline starting point for sentence after trial should be 20 to 23 years’ imprisonment.

The defendant was caught trying to import the dangerous drug into Hong Kong. In HKSAR v Abdallah (supra) at paragraph 42, the Court of Appeal further held that if there is an international element in the trafficking of drugs, there should be an enhancement of the starting point in sentence.

In HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal held at paragraph 9 that, as a broad guideline, the level of enhancement for trafficking in between 500 and 1,000 grammes of narcotic should be 1 year to 2 years.

In the present case, a three-stage process is thus involved in sentencing:

(1) to take a starting point for the quantity of the drug involved;

(2) then to add to that such additional term as is warranted by the international factor;

(3) finally, to reduce the sentence from the starting point on account of mitigating factors, including, of course, the defendant’s guilty plea.

In my view, following the principles set out above and based on the quantity of the narcotic involved, the proper initial starting point for sentence in the present case should be 20 years and 6 months’ imprisonment. 1 year and 4 months should be added to that by way of enhancement for the international element. This will take the starting point up to 21 years and 10 months’ imprisonment.

Finally, I shall give the defendant the full one-third discount for her guilty plea, which was entered at the earliest opportunity at the Magistrates’ Court.

The defendant is accordingly sentenced to 14 years and 6 months’ imprisonment.