HKSAR v. RADO MARY LITREN ADHIAMBO

CACC 143/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 143 OF 2014

(ON APPEAL FROM HCCC 421/2009)

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J U D G M E N T

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Hon D Pang J (giving the Judgment of the court):

1. On 17 June 2010, after trial by Patrick Li J and a jury, the applicant was found guilty of one count of trafficking in dangerous drugs, namely 1,016.01 grammes of a mixture containing 420.39 grammes of heroin hydrochloride and 250.66 grammes of monoacetylmorphine hydrochloride. On the same day, she was sentenced to 20 years and 10 months’ imprisonment. Three years and ten months later, on 24 April 2014, the applicant applied for leave to appeal against sentence out of time. That application is now before us for consideration.

THE CASE

2. On 22 July 2009, having just arrived from India via Singapore, the applicant who was coming out from the ‘nothing to declare channel’ of the airport arrival hall was stopped by customs officers and found to have ten dresses in her suitcase.  On these ten dresses were sewn a total of 407 buttons all of which were found to contain a quantity of dangerous drugs.  The type and aggregate amount of dangerous drugs so concealed were as charged.  Under caution, the applicant denied knowing what was in the buttons.  Her account and defence was that her friend Mark had entrusted her with the ten dresses to be brought back to his mother in Kenya as gifts.  It was an admitted fact in the case that the drugs were worth HK$673,614.  It was admitted that:

“[b]oth heroin and monoacetylmorphine are substances derived from opium. They are of similar potency. The pharmacological effects and side effects of monoacetylmorphine are similar to those of heroin”.

THE SENTENCE

3. The judge said this in passing sentence:

“The defendant is 58 years old. She has a clear record in Hong Kong. She is married with a grandson. She initially gave birth to five children, unfortunately only a daughter is now surviving. She has five grandsons which need her financial support. The defendant stopped schooling after Form 2 due to financial problems. However, she took up various kinds of jobs and managed to finish Form 4 by private study. She is not an addict.

The defendant claims that her daughter needs kidney transplant. She maintains her innocence claiming that it was Mark who used her to take dangerous drugs to Hong Kong. There is no remorse in her.

I notice that there was another drug, monoacetylmorphine hydrochloride present in the mixture. According to the admitted facts, both heroin hydrochloride and monoacetlymorphine hydrochloride are dangerous drugs with similar potency. Given this information I would add the weight of the two drugs together for the purpose of sentencing.

The sentencing tariff in HKSAR v Lau Tak Ming [1990] 2 HKLRD 370 and HKSAR v Abdullah [2009] 2 HKLRD 437 are applicable. For the quantity of heroin hydrochloride and monoacetylmorphine hydrochloride in this case the sentence should be 20 to 23 years’ imprisonment.

I bear in mind that there is also an international element in the present case as the dangerous drugs were taken from New Delhi via Singapore to Hong Kong. The starting point should be enhanced to reflect this aggravating factor.

Having considered the amount of heroin hydrochloride and monoacetylmorphine hydrochloride, her background and the mitigation by defence counsel I take 20 years and 4 months as the starting point. I add 6 months to reflect the international element in this case.

I have considered the mitigation thoroughly by counsel and there is no strong mitigating circumstances. Sufferings of family members are not a valid reason to reduce the sentence.

I now sentence the defendant to 20 years and 10 months’ imprisonment.”

THIS APPEAL

4. In her affirmation for an extension of time, the applicant explained that her conviction and long sentence in June 2010 had shocked her.  Her heart was said to have “disintegrated” also because of her daughter’s medical condition.  She said she was confused and unable to think normally.  She explained how between July 2010 and June 2013, her daughter, her husband and her four sisters had all passed away.  It was stated in the affirmation that having had the time to “reason”, the applicant now accepted responsibility for bringing the suitcase to Hong Kong which, the applicant considered, would “automatically” make her guilty of the offence of trafficking in dangerous drugs.  The applicant indicated her wish to change her plea to “guilty” and asked the Court to restore her normal life.

5. By a letter dated 1 September 2014, the applicant revisited what was in her earlier affirmation.  She added that a 6-year old son of her deceased daughter was now growing up in Kenya without proper care and attention.  She intimated that other members of her family were, given her long absence away in prison, fighting over her husband’s land which, if taken away, would deprive her and her grandson of a home.  The applicant adverted to her age (62) and her ailments (asthma and high blood pressure).  She reiterated her lack of knowledge of the drugs in the case but again “accepted responsibility” for bringing those drugs into Hong Kong.  She said she had an exemplary record of public service in Kenya and would appeal to this Court to reduce her sentence and enable her early release to solve her problems.  She said she had hoped to serve the remainder of her sentence in her home country but there was no bilateral agreement on the transfer of sentenced persons between Kenya and the Hong Kong Special Administrative Region.  Her case, which had to be dealt with on an ad hoc basis, had so far produced no result from the executive authorities.

6. In court before us, the applicant relented and admitted having knowledge of the drugs in her suitcase.  She repeated her wish to “plead guilty”.

ANALYSIS

7. Timely pleas of guilty are an important mitigating factor.  They are invariably met with a discounted sentence. Convicted persons are not however permitted to change their pleas after trial so as to avail themselves of that benefit.  To allow them to do so will make a mockery of sentencing policy.

8. Due consideration has also been given to the applicant’s personal and family circumstances.  If true, they are distressing. We are however unable to see how a reduction in sentence, on a purely humanitarian basis, would be of any assistance to the applicant unless it anticipates her immediate release which having regard to the seriousness of the present offence, is inconceivable.  The applicant would be better advised to continue with her quest for a transfer back to Kenya to serve out her sentence, which is pending.  In her home country, she would at least have the advantage of proximity in managing her affairs.  In the interim, the facilities in the Correctional Services Department should be adequate to meet her medical and counseling needs.  We are given to understand that the applicant has the company of other Kenyan nationals in custody which may go to some extent to alleviate the stressfulness of her situation.

9. The 20 year and 4 month starting point of sentence that the judge adopted was unassailable.  Given that the applicant was trafficking unlawfully in about 670 grammes of heroin, the enhancement of 6 months’ imprisonment to reflect the aggravating factor of the international element of the commission of the offence was unduly lenient. Over all, the applicant should not and does not have any justified complaint about her sentence.  We are satisfied that in denying the applicant leave to appeal out of time, we would not be shutting out a meritorious appeal.

DISPOSAL

10. For the above reasons, the application is dismissed.