HKSAR v. MUTURU, ESTHER WAITHIRA

CACC 16/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 16 OF 2015

(ON APPEAL FROM HCCC NO. 322 OF 2013)

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BETWEEN
HKSAR Respondent
and
MUTURU, Esther Waithira Applicant

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Before: Hon Lunn VP and Macrae JA in Court

Date of Hearing: 24 June 2015
Date of Judgment: 24 June 2015

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1. On 2 August 2013, the applicant pleaded guilty at the Eastern Magistrate’s Court to one charge of trafficking in a dangerous drug,contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and was thereby committed to the High Court for sentence. On 10 October 2013, she appeared before Deputy Judge McMahonand was sentenced to 12 years’ imprisonment.

2. On 14 January 2015, the applicant filed a notice of application for leave to appeal against sentence out of time, by which timeher application has been out of time by some 14 months.

The prosecution case

3. The facts, which were agreed, were as follows. On 21 January 2013, the applicant, a Kenyan national, arrived in Hong Kong InternationalAirport from Nairobi in Kenya, via Doha in Qatar. She was intercepted by customs officers and taken to a hospital for medical examinationwhere, over the course of four days, she discharged a total of 101 pellets from her body containing what were later found to be 960grammes of a mixture containing 550 grammes of heroin hydrochloride. Under caution, she said that she had swallowed the pelletsgiven to her by an unknown male in Kenya – not knowing what was inside them – and had been instructed to deliver them to HongKong for a reward of US$2,500. Upon her arrival in Hong Kong, she was to stay at a named hotel and to call a man on the Mainlandfor further instructions. The estimated street value of the dangerous drugs was HK$784,320.

Mitigation

4. On her behalf, it was submitted that the applicant, a person of previous good character and the mother of two children, had lostmoney in her hairdressing business, as a result of which she resorted to borrowing money from loan sharks to whom she owed money. Further, her mother and grandmother were in poor health. For reasons of financial necessity, she became involved in this offence.

The deputy judge’s reasons for sentence

5. In sentencing the applicant, the deputy judge adopted a starting point of 17 years’ imprisonment for the quantity of heroin narcoticconcerned. Since the applicant had brought the dangerous drugs over the border into Hong Kong, he enhanced the sentence by 1 yearto 18 years’ imprisonment for the international element involved in her offence. Giving the usual one-third discount for her guiltyplea, the deputy judge sentenced the applicant to 12 years’ imprisonment.

Application for leave to appeal against sentence out of time

6. In an affirmation attached to her notice of application for leave to appeal out of time filed on 14 January 2015, the applicanthas referred to a recent family problem as providing the reason for the late application for leave. She said that her two sons wereborn to different fathers, one of whom had gone to live in the United States in 2014 via the Diversity Immigrant Visa Program, commonlyknown as the “Green Card Lottery”. He wished to apply for her son to move to the United States with him. The applicant’sinvolvement was necessary to effect that application, since problems might occur when the son reached maturity. The applicant wasfirst made aware of the difficulty of her son entering the United States in July 2004, by which time her proposed appeal was alreadymany months out of time. The applicant would therefore like the Court to consider her problem and adjust her sentence.

7. The applicant has written two further letters to the Court, dated 13 April and 10 May 2015 respectively, enclosing some correspondencefrom the United States from the child’s father, which supports the point she has been making. She has also explained that sheis remorseful and has utilised her time in prison well by embarking successfully on certain distance learning studies.

8. We are not persuaded that the reasons advanced provide any justification for allowing the applicant leave to appeal against hersentence out of time. Imprisonment in another country will of necessity lead to many difficulties for defendants in their respectivecountries of origin, which should have been considered before embarking on their perilous journeys. We understand from the applicantthis morning that she has been able to contact the Kenyan Embassy in Beijing, while her family have approached the authorities inKenya, and she is currently awaiting their respective responses. There is nothing to suggest in this case, therefore, that the applicantcannot do from prison what is necessary for her son’s emigration to the United States.

Appeal against sentence

9. The applicant has not suggested that the sentence she received was either wrong in law or manifestly excessive. She has merelyasked for a reconsideration of her sentence because of the change in her family circumstances as explained above.

10. It is clear that the starting point of 17 years’ imprisonment adopted by the judge was well within the range of sentences opento the deputy judge in respect of 550 grammes of heroin narcotic: see R v Lau Tak-ming & others[1]. Indeed, the applicant could not have complained if she had warranted a slightly higher starting point under the guidelines, whichsuggest a sentence of 15 to 20 years’ imprisonment for quantities of between 400 and 600 grammes of heroin hydrochloride narcotic. Further, the enhancement of sentence by 1 year for the international element was correct and in accordance with the approach inother cases dealing with similar quantities: see HKSAR v Maumba Hassani Rashidi[2]; HKSAR v Loua Cece[3].

11. In all the circumstances, the sentence was entirely proper and leave to appeal against sentence out of time must be refused.

(Michael Lunn) (Andrew Macrae)
Vice-President Justice of Appeal

Mr Raymond Cheng SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person


[1] [1990] 2 HKLR 370

[2] (unrep., CACC 410/2014, 21 May 2015)

[3] (unrep., CACC 328/2014, 21 May 2015)