HKSAR v. SITI HANDAYANI

HCCC 426/2017

[2018] HKCFI 2469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 426 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Defendant, you have been found guilty, after trial by a jury, of trafficking in dangerous drugs. That is, on 2 May 2017, outside the Kam Tin Post Office, Kam Tin, in New Territories, of trafficking in 589 grammes of a solid containing 519 grammes of cocaine.

On 24 April 2017, a Customs officer examined an incoming parcel posted from Brazil to Hong Kong at the Hong Kong International Airport. After opening the parcel, he found a hidden compartment at the bottom of the cardboard box and the cocaine was found concealed in the hidden compartment.

This parcel was then rewrapped back in its original form, this parcel was addressed to one, Loe Martins at 19 Bor Tei Road, Kam Tin, Yuen Long. The contents of the parcel were described as “of cotton”.

The post office received an enquiry from a male, speaking English, about the parcel and asked this parcel to be delivered to Kam Tin Post Office for collection. An appointment was arranged to meet for collection of the parcel on 2 May with this male through the telephone.

On 2 May 2017, instead of a male collecting the parcel, at about 3.50 pm, the defendant, you, went to Kam Tin Post Office and collected the parcel. In doing so, you produced various documents authorising you to collect the parcel. This included an authorisation letter from one, Loe Martins; a colour copy passport page of Loe Martins and your Form 8 recognisance document. After production of these documents, the parcel was given to you.

You then left Kam Tin Post Office and you were immediately arrested by Customs officers. Upon questioning by the Customs officer, you told them that your friend, Kings, asked you to collect the parcel for him. You did not know what was inside the parcel, but you suspected it to be some cosmetics.

The jury found that you knew what was in the parcel was dangerous drugs.

The retail price of the drugs as of April 2017 was in the sum of $472,967.

Defendant, you are 30 years of age and are of clear record. You are Indonesian by nationality and came to Hong Kong as a domestic helper in 2012. Your contract was terminated by your employer in 2015. However, in that year you found you were pregnant and therefore decided to remain in Hong Kong and made an application of non-refoulement to Indonesia, and applied, as is commonly referred to, to be a torture claimant. You therefore remained in Hong Kong under a Form 8 recognisance since 2015.

Your child was born in Hong Kong and you have been the sole and primary carer of your young son, who is now two years old. The father of the child does not live in Hong Kong and in fact rarely sees the child.

Defendant, in this present case, you were clearly a courier. You were sent to collect these drugs by a person whom you say was Kings. After collecting these drugs, you were supposed to hand them over to the recipient who you also say was Kings.

Immediately after your arrest on 2 May, you were permitted to use your mobile phone by the inspector of Customs, to call this person, Kings. Phone calls were made between yourself and Kings in the presence of the inspector. You had tried to arrange for Kings to collect this parcel from you. You had informed Kings that you wanted to hand the parcel over to him as soon as possible as you needed to take care of your son. Despite the telephone conversations with Kings, however, no handover took place. It would appear to be from that time on, Kings was unable to be contacted.

Defendant, Miss Crebbin has made detailed mitigation on your behalf. She accepts that there is an international element involved in this case, as the drugs were imported from Brazil and you went to collect these drugs from the post office. She accepts there is a further enhancement in that you are a torture claimant, having committed a very serious offence such as drug-trafficking in Hong Kong.

Miss Crebbin asks this court to give you a discount, however, for doing all you can to point your finger at Kings by giving information to the Customs and Excise Department about Kings. She also asked this court to take into account the fact that you have assisted Father Wotherspoon in trying to point your finger at these so-called Nigerian drug lords in Hong Kong, who are targeting vulnerable asylum seekers like yourself.

Let me turn to the sentence, first of all. In this case, Defendant, you were trafficking in 519 grammes of cocaine. The guideline tariff case is that of Lau Tak Ming. Between 400 and 600 grammes of cocaine, a starting point after trial is one between 15 and 20 years’ imprisonment.

You have, Defendant, been convicted after trial and I therefore take a starting point of 17 years and 9 months’ imprisonment. I note you have a clear record, but that does not warrant any discount.

As I mentioned earlier, and as your counsel correctly conceded, there are aggravating factors in this case which call for enhancement of sentence. First, is one of that being the international element and the leading case on that is Chung Ping Kun and in that instance, taking into account the quantity of drugs, I enhance your starting point by 1 year, making the sentencing point one now of 18 years and 9 months’ imprisonment.

You are a torture claimant, committing a very serious offence in Hong Kong, and as is clear now from the Court of Appeal, this is an aggravating factor, again calling for enhancement. I take guidance from the case of HKSAR v Joof Saihou CACC 252/2017, a judgment handed down on 22 June 2018, where the Court of Appeal there dealt with the international element and torture claimants together.

I refer specifically to paragraph 30, where the Court of Appeal, Zervos J, as he then was, stated that a sentence can be enhanced as much as 18 months for trafficking in 440 grammes of cocaine narcotic for a Form 8 recognisance holder. However, importantly, in the conclusion there, I refer to Macrae VP’s decision at paragraphs 34 and 35, which I will refrain from reading. But in those paragraphs, he refers to the case of Fitri. At paragraph 36, he noted in Fitri:

“The applicant’s sentence had therefore been enhanced by the sentencing judge by 2 years’ imprisonment for both aggravating features and the Court, on appeal, did not think a greater enhancement was appropriate, particularly when it was dealing with just under half a kilogramme of cocaine narcotic. It is in that context that the enhancement of only 1 year for being a Form 8 recognisance holder in Fitri, where the quantity concerned was 454.13 grammes of cocaine narcotic, should be seen.”

I would follow this judgment in that I would only impose an enhancement for her being a torture claimant by one year. In those circumstances, the further sentencing point would be one of 19 years and 9 months’ imprisonment.

I turn now to whether the defendant should be granted any discount in her sentence. Miss Crebbin says that the defendant should be awarded discount for doing all that she possibly could to participate in the controlled delivery to have Kings collect the parcel and also for naming this person, Kings, and giving the description of Kings to the Customs and Excise.

I accept of course that the defendant participated in a controlled delivery by phone calls, but such delivery was unsuccessful. These calls were made in the presence of the inspector of Customs and Excise.

The case to which assists the court, the very recent case also is in respect of assistance to authorities, is that of HKSAR v Lo Sze Tung, Stephanie, CACC 190/2017. At paragraph 48, the court stated:

“This sentencing range allows a court to award a discount to a defendant who has made a genuine attempt to assist the authorities, his assistance has been helpful but, for one reason or another, it is not assessed to be of particularly great value. One of the most commonly encountered forms of assistance found within this range is participation in an unsuccessful controlled delivery.”

The court goes on to say:

“This particular form of assistance is frequently encountered in drug courier cases and the reason it is unsuccessful is because the recipient of the drugs does not attend the pre-arranged meeting place, perhaps because of his suspicions have been aroused by delay in the courier contacting him or for some other reason. The assistance rendered by the co-operating defendant is, therefore, both limited and unfruitful. Notwithstanding that the assistance possesses these features a discount is given in order to encourage other offenders to similarly cooperate with our law enforcement agencies.”

The court goes on to discuss that there is no single uniform discount, and particularly refers to the judgment made by Macrae JA, in the Court of Appeal in HKSAR v Darlington [2016] 1 HKLRD 692. Macrae JA sets out “the factors that are relevant to a sentencing judge’s assessment of the value of the defendant’s assistance”. He said:

“Such factors would include: (i) the nature and effect of any voluntary participation; (ii) the outcome of the assistance: was it successful in bringing to justice persons who would not otherwise have been brought to justice?; (iii) the degree or extent of assistance which had been provided; and (iv) the degree of risk to which the defendant had exposed himself or his family. It is a matter within the discretion of judges how these, and other possible, factors affect the discount to be accorded a defendant in a particular case.”

In looking at these factors to guide me in whether the defendant had assisted the authorities, it appears she participated voluntarily in making phone calls to Kings, however, the outcome of assistance was not successful in bringing Kings to justice. And at the time that she made these phone calls, she was not at risk either to herself or to her family as these calls were made in the present of the inspector.

It is of course known now, at the trial, that Kings was a person who was in custody for another drugs offence, not related or connected to this offence. The fact that Kings was in custody for an unrelated matter had nothing to do with information provided by this defendant.

Nevertheless, it may be considered that the defendant’s information may have been correct that Kings was involved in this case and what she says may be true. Nevertheless, there is no value in my view of her assistance to the Customs in this particular case or assistance in that it was not as a result of her information provided that Kings was arrested for another matter.

I had adjourned sentence on the last occasion for the defendant to offer further information. However, it appears to me now that Mr Hingorani had informed me yesterday that the defendant would not be providing or giving any further information.

Although the defendant had in fact mentioned Kings, had described him, in my view there is no value in her providing this information to the authorities and in those circumstances I am unable to give her any discount at this stage. She has informed me through Miss Crebbin, however, that should the need arise, she is willing to be a defence witness if Kings were to be charged with an offence in relation to this case or other matters. If that transpires, then the court or the Court of Appeal may be the appropriate place to take up this matter as to whether any further discount should be given.

That leaves me only with her participation in the controlled delivery. I will, in this instance, give her a discount of 3 per cent to her sentencing point. Giving her this discount, the sentencing point will then be reduced to 19 years and 1 month imprisonment.

Turning now to her assistance to Father Wotherspoon. I am guided and rely upon the very recent case of HKSAR v Kilima Abubakar Abbas CACC 143/2016, whereby the very strong Court of Appeal of Lunn VP, Macrae VP and McWalters JA handed down their judgment just about 10 days ago, on 18 September 2018. In this case, Father Wotherspoon has informed me that the defendant has assisted him in providing information about the Nigerian drug lords who are targeting vulnerable asylum seekers to collect parcels from post offices. She had helped him identify a group of 36 Nigerians, who were foolish enough to put a group photo of themselves on Facebook. I take this as assistance and in following the case of Abbas, I grant the defendant a discount of three months’ imprisonment.

Defendant, your resulting sentence taking into account those matters shall be one, to which you are sentenced, of 18 years and 10 months’ imprisonment.