HKSAR v. FERUZI MARIAM HARUNA

CACC 12/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 12 OF 2014

(ON APPEAL FROM HCCC 269 OF 2013)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1. The applicant, who appears in person having been refused the grant of legal aid, seeks leave to appeal out of time the sentence of 13 years’ imprisonment imposed upon her on 12 August 2013 by Deputy High Court Judge Stuart-Moore for the offence of unlawfully trafficking in dangerous drugs, namely 530 grammes of heroin hydrochloride, on 3 January 2013 at Hong Kong International Airport, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

THE FACTS

2. The applicant, a Tanzanian national, was intercepted in the early evening of 3 January 2013 in the Customs Hall at Hong Kong International Airport on her arrival on a flight from Tanzania via Ethiopia.  An examination of her at a hospital confirmed the presence of foreign objects in her body.  Over the following several days she discharged 105 pellets containing the heroin hydrochloride the subject of the count on the indictment.

Reasons for sentence

3. In his reasons for sentence, the judge said that, having regard to the guidelines articulated in the judgment of this Court in The Queen v Lau Tak Ming [1]in which unlawful trafficking in amounts in the range of 400 to 600 grammes of heroin hydrochloride was said to attract sentences of between 15 and 20 years’ imprisonment, he took a starting point for sentence of 18½ years’ imprisonment.  He said that the fact that the applicant was importing the dangerous drugs into Hong Kong was an aggravating feature, which he reflected by an additional one year’s imprisonment.

Discount

4. From the resulting total sentence of 19½ years’ imprisonment the judge afforded the applicant a one third discount to reflect her plea of guilty.  In the result, the judge imposed a sentence of 13 years’ imprisonment on the applicant.

Ground of appeal against sentence out of time

5. In an affirmation filed with the court on 10 January 2014 in support of her application for leave to appeal against sentence out of time the applicant asserts simply that she did not launch the application within the prescribed period because she lacked education and an understanding of what was required.  Today, she has added orally that she did not know about her being able to appeal.

6. Of the sentence, the applicant said that it was “very high” and complained that it was higher than the sentence imposed upon her fellow inmate, Massogoa Nasra Hassani [2], who has been sentenced by Deputy High Court Judge Geiser to 12 years and 8 months’ imprisonment having pleaded guilty to unlawfully trafficking in 560 grammes of heroin hydrochloride by way of importation into Hong Kong.  There, the judge had taken a starting point for sentence of 18 years’ imprisonment, which he had increased by one year’s imprisonment to reflect the aggravating factor of importation of the dangerous drugs.

7. In a letter to the court dated 6 March 2014 the applicant has referred to two other cases, one of which the court has located.  In HKSAR v Muturu Esther Waithira [3]the defendant was sentenced after pleading guilty to an offence of unlawfully trafficking in 550 grammes of heroin, which was concealed in her body in 101 pellets, which she imported into Hong Kong.  There, Deputy High Court Judge McMahon took a starting point of 17 years’ imprisonment, which he enhanced by one year’s imprisonment to reflect the aggravating factor of importation.  Having afforded the defendant a discount of one third for her plea of guilty, the judge sentenced the defendant to 12 years’ imprisonment.

8. Today, in her oral submissions, the applicant has repeated her plea for mercy and leniency, confirming that that she is the mother of two children, who have no father to look after them.  She herself has no mother and she said a lot of relatives depend on her.

A CONSIDERATION OF THE SUBMISSIONS

9. The applicant has failed to advance any cogent explanation for the fact that her application for leave to appeal against sentence was filed almost 4 months after the expiry of the period during which notice is required to be given.  Nevertheless, as is our practice, we will examine the submissions she advances lest there be any substantial merit.

10. It has to be acknowledged of the defendants in the two cases to which the applicant has referred the court that, although they trafficked unlawfully in greater amounts of heroin hydrochloride and used the same methods to import the dangerous drugs into Hong Kong, lesser sentences of imprisonment were imposed upon them.  It is that disparity in sentencing that causes the applicant to harbour an obvious grievance.  In both cases the starting point taken for sentence by the respective judges was considerably less than that which is to be arrived at by a purely arithmetic approach to the guidelines.  To that extent, the eventual sentences imposed upon them appear to have been generous to those defendants.

11. However, as this Court has noted on numerous occasions the issue of primary importance is whether the sentence of imprisonment imposed on the applicant with whose case the court is concerned is manifestly excessive, having regard to the factors relevant to sentence in light of the appropriate guidelines.  In this case, the starting point taken for sentence of18½ years’ imprisonment, albeit slightly high on a purely arithmetic application of the guidelines, was clearly within the range of discretion available to the Judge.

12. In the judgment of this Court in HKSAR v Abdallah [4] Stuart-Moore VP identified a range of aggravating factors that called for an enhancement of sentence for unlawfully trafficking in heroin, including whether there was an “international element” involved.  Of the appropriate enhancement of sentence, he said:

“ We do not envisage that the enhancement, for any of the reasons we have itemised, for amounts above 1 kg will be less than 2 years’ imprisonment...”

In light of the quantity of heroin hydrochloride in which the applicant unlawfully trafficked into Hong Kong the judge’s enhancement of sentence by one year’s imprisonment was entirely appropriate.

Conclusion

12. For the reasons that we have given we are satisfied that the sentence imposed on the applicant was appropriate.  Accordingly, the application for leave to appeal against sentence out of time is dismissed.

[1] The Queen v Lau Tak Ming [1990] 2 HKLR 370.

[2] Massogoa Nasra Hassani (HCCC 234/2013; unreported, 13 August 2013).

[3] HKSAR v Muturu Esther Waithira (HCCC 322/2013; unreported, 10 October 2013).

[4] HKSAR v Abdallah [ 2009] 2 HKLRD 437 at page 453, paragraph 42.