HKSAR v. RIZIKI RIZIKI HAMDUNI

CACC326/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 326 OF 2009

(ON APPEAL FROM HCCC NO. 230 OF 2009)

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BETWEEN

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JUDGMENT

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Hon Lunn J (giving the Judgment of the Court) :

1.  The applicant, who appears in person, seeks leave to appeal against a sentence of 15 years and 4 months’ imprisonment imposed on him by McMahon J in the Court of First Instance for a single charge of unlawfully trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs ordinance, Cap. 134.  The applicant was committed for sentence to the Court of First Instance having pleaded guilty to that charge in the Magistracy.

The facts

2.  The applicant, a citizen of Tanzania, was detained in the Customs Arrival Hall at Hong Kong International Airport on his arrival in Hong Kong on 11 February 2009.  An examination of the applicant at Queen Elizabeth Hospital revealed the presence of foreign objects in his body.  During the next two days the applicant excreted 106 pellets containing 1487.41 grams of a mixture, which itself contained 958.39 grams of heroin hydrochloride.  The retail value of the dangerous drugs was just over $746,000.  In a record of interview the applicant admitted that he had swallowed the pellets in return for the promise of the payment of United States $1,000 on successful delivery.

Sentence

3.  In sentencing the applicant the judge stated that, having regard to the guidelines articulated in the judgment of this court in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, he took a starting point for sentence of 21 years’ imprisonment, which he enhanced to 23 years’ imprisonment to reflect the “international dimension of the offence”.  Affording the applicant a discount of one‑third from the starting point taken for sentence to reflect his plea of guilty, that being the only mitigation taken into account, the judge imposed a sentence of 15 years and 4 months’ imprisonment on the applicant.

Grounds of appeal against conviction

4.  In his home-made grounds of appeal against conviction the applicant submits :

(1)	that the starting point of 23 years’ imprisonment taken by the judge was too high; and
(2)	that the judge had failed to take into account as a factor relevant to sentence the element of “foreignness”, which arose from the fact that he was a foreigner to Hong Kong, a stranger to its language and separated by great distance from his family.

The submissions on behalf of the respondent

5.  Mr Chiu, on behalf of the respondent, in his written submissions, pointed out that although the judge adverted to the judgment of this court in Abdallah as the basis for determining the appropriate sentence to be imposed upon the applicant, that judgment was not delivered until 12 March 2009, whereas the events the subject of the charge against the applicant occurred on 11 February 2009.  As was pointed out in terms in the judgment of the court delivered by Stuart-Moore VP the guidelines there articulated do not have retrospective effect.  Nevertheless, Mr Chiu submits that a starting point of 21 years’ imprisonment for unlawfully trafficking in 958.39 grams of heroin hydrochloride was appropriate, as was the enhancement of that sentence by two years’ imprisonment to reflect the fact of importation into Hong Kong in the unlawful trafficking.

6.  Of the applicant’s contention that the judge erred in disregarding the fact that the applicant was a foreigner, in consequence of which the hardship to be visited upon him as a prisoner in Hong Kong would be greater than for a non-foreigner, Mr Chiu reminded the court of the judgment of a differently constituted division of this court in HKSAR v Hong Chang Chi [2002] 1 HKC 295, in which Stuart-Moore VP said (page 300 A-B) :

“… Whilst the overseas status of a defendant was a circumstance to be taken into consideration, it could not amount to mitigation to any substantial degree and should not, on that account, be given a specific discount. …”

A consideration of the submissions

7.  As Mr Chiu has pointed out, the judge fell into error in relying upon Abdallah as the basis for determining the appropriate sentence to be imposed upon the applicant.  The judgment of this court in R v Lau Tak Ming [1990] 2 HKLR 370 provides the apposite guidelines for sentencing after trial in cases of unlawful trafficking in heroin hydrochloride.  Amounts of between 400 grams and 600 grams fall into the band of 15 to 20 years’ imprisonment.  Amounts of over 600 grams fall into the “very large quantities” category for which there can be an upward increase in sentence.

8.  Of the issue of an international element in unlawful trafficking in dangerous drugs, it was noted by this court in Abdallah that (para. 21, page 448) :

“ It has long been accepted that an international element in trafficking, whether by importation or by exportation, is to be regarded as a factor in material aggravation of the offence for sentencing purposes whereas ‘local’ offences, confined to trafficking in Hong Kong, will usually result in lower starting points for about the same quantity of heroin or cocaine. …”

9.  In our judgment, the judge was correct to decline to have regard to the fact that the applicant was a foreigner to Hong Kong as mitigating the appropriate term of imprisonment to be imposed upon him.  In Hong Chang Chi this court said (page 302 D-F) :

“ When it comes to importing drugs from other jurisdictions into Hong Kong, the public interest demands that the message should be made more clearly than in almost any other situation. Drug traffickers from abroad, importing drugs into Hong Kong should plainly understand that they will receive no sympathetic consideration whatsoever on account of their status as foreigners or, as in this case, on account of their incarceration some distance from home. On the contrary, in cases of this kind the very act of importation from abroad is an aggravating factor. Those who live outside this jurisdiction, such as the applicant in the present case, must be disabused of any notion that Hong Kong is anything other than resolute in dealing with such offences.”

10.  Given the quantity of heroin hydrochloride in which the applicant unlawfully trafficked, namely 958.39 grams, a starting point of 21 years’ imprisonment was entirely appropriate as was the enhancement of sentence by two years to reflect the aggravating factor of importation.

11.  In our judgment, the judge was correct in stating that the only mitigation of substance was the applicant’s plea of guilty and in discounting the starting point he had taken for sentence by one‑third to reflect the plea of guilty.

Conclusion

12.  In the result, we are satisfied that there is no merit in the applicant’s proposed grounds of appeal against sentence.  Accordingly, his application for leave to appeal against sentence is dismissed.