HKSAR v. MBUGUA JAMES WAIGWA

CACC188/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 188 OF 2009

(ON APPEAL FROM HCCC NO. 7 OF 2009)

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BETWEEN

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J U D G M E N T

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

1.  The applicant appears, who appears in person, applies for leave to appeal against his sentence of 21 years’ imprisonment that was imposed upon him by Deputy Judge Mackintosh (as he was then) following his conviction after trial for a single count of unlawfully trafficking in a dangerous drug, namely 879.31 grammes of a mixture containing 610.67 grammes of heroin hydrochloride.  

2.  The applicant is a resident of Kenya.  On the afternoon of 6 July 2008 he was detained at the customs area of Hong Kong International Airport on arrival in Hong Kong from Mumbai in India via Kuala Lumpur in Malaysia.  Following an examination of his luggage and a search of his person the applicant was sent to Queen Elizabeth Hospital where a medical examination revealed the presence of a foreign object inside his body.  Over the following few days the applicant excreted a total of 75 pellets which were found to contain a total weight of the mixture described in the charge of which 610.67 grammes were heroin hydrochloride.  Of that, there was no dispute. 

3.  Clearly the jury rejected the defence advanced by the applicant both in and out of court record of interview and his testimony that he had acted that he did under duress. 

4.  In sentencing the applicant, the judge observed that in his record of interview the applicant had admitted that he had swallowed the capsules in Mumbai and smuggled them to Hong Kong for a reward of US$4,000.  The judge said that he took into account that there was an international element in the commission of the offence in that the applicant had brought the drugs into Hong Kong.  That was an aggravating factor.  Having stated that for such a grave offence, personal and family circumstances carried no weight, the judge took a starting point of 20 years’ imprisonment, to which he added 1 year’s imprisonment to reflect the international element. 

5.  In his homemade grounds of appeal against sentence and the multiple hand-written letters that the applicant has provided to the court, the applicant complains of the harsh nature of his sentence.  He is separated from his wife and children who live in Kenya.  He asks for mercy.  Today, in his address to the court he has explained that he has health problems.  Those problems are both mental and physical.  They have been brought on, apparently, in consequence of the sentence which he now faces.  He is seeing a psychiatric.  We are informed that he is seeking repatriation to Kenya to serve his sentence. 

6.  As the judge observed, the offence committed by the applicant was a grave offence for which personal and family circumstances carried no weight in mitigation.  His health problems are and will be addressed by the Correctional Services Department.  The starting point taking by the judge of 20 years’ imprisonment was in accordance with the guidelines articulated by this court in R v Lau Tak Ming & Others [1990] 2 HKLR 370.  

7.  It has been long recognized that the fact of importation into Hong Kong is an aggravating feature in the commission of the offence of unlawfully trafficking in heroin.  Support for that proposition is to be found in the judgment of this court in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 at paragraph 21 :

“21. It has long been accepted that the 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. …”

8.  Here, the judge was entitled to increase the starting point that he took for sentences by 1 year to reflect that aggravating feature.  There is no merit in the proposed grounds of appeal and the application for leave to appeal against conviction is dismissed.