COURT: On 31 December 2019, Nor Umi Sabiha Binti Tauran Turki, (hereinafter “the accused”) presented at the Hong Kong International Airport. She went to the Customs Arrival Hall for inspection.
The rucksack of the accused was searched and 282 yellow pellets were found. They were suspected to be cocaine. Indeed, on analysis, it was found to be 3,948.5 grammes of a solid containing 3,211.6 grammes of cocaine.
The estimated street value of that cocaine was $4.23 million.
At the time of her arrest, the accused was in possession of US$171, a Samsung mobile phone with some SIM cards, two boarding passes and an itinerary.
The accused was put up before a magistrate on 3 January 2020. In the result, after a multitude of adjournments, on 8 February 2021, she pleaded guilty before Mr Daniel Tang Siu-hung sitting as a permanent magistrate and she was committed for sentence to this court.
She has, through her counsel, confirmed the facts in the file and her plea and accordingly, she is convicted as charged.
Background and Mitigation
The accused is now 30 years of age and is a Malaysian citizen. She has no criminal record in Hong Kong. She is married and has four children, three daughters and one son aged between, I think, five and nine. They have now been dispersed between her godparents and the husband of the accused due to certain domestic arrangements in Malaysia. Naturally, they miss their mother deeply. Her parents have passed away. She has four siblings and one of her siblings recently passed away.
I should add under this heading that since being incarcerated, she has actually participated and continues to participate in the anti-drug campaign operated by Father John Wotherspoon and has materially assisted in that programme.
Sentencing Principles
Sentencing for Trafficking in Cocaine
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as cocaine. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. There are consequences-sometimes serious ones - for the families of those who become addicted to cocaine.
The view of the community is reflected in the maximum sentence provided by section 4 of the Dangerous Drugs Ordinance. That provides for convictions on indictment for a maximum sentence of life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs the subject of the charge in this case.
Sentencing Band
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370. Further, in Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in Lau Tak Ming (above) were appropriate for cocaine. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. That case also provides for guidelines for quantities relevant to the present case.
The applicable sentencing guidelines for a sentence for quantities between 1,200 grammes and 4,000 grammes of cocaine attract a sentence of an accused who had been convicted after trial of between 23 and 26 years’ imprisonment.
Role of the Accused
It is critical to determine the role of the accused in the crime (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974, 49, 58-61, 64-68). In that case, the Court of Appeal recognised that although the analytical starting point of the sentencing guidelines for drugs such as cocaine start upon the premise of sentencing for a courier or storekeeper, there is a range of culpability even if the trafficker can be characterised, as in this case, as a courier. The Court of Appeal held that an accurate characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence the accused above or below the mathematical application of the relevant guideline. The Court of Appeal rejected a sentencing approach in trafficking in dangerous drugs where the sentence was based solely on narcotic content.
Discount for Plea of Guilty
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment that a discount from the appropriate starting point of 33 per cent would be applicable.
Enhancement for cross-border trafficking
The courts of Hong Kong have for many years recognised that it is an aggravating factor in trafficking in dangerous drugs is that taking them across an international border into Hong Kong is a serious matter. The policy which underlies this is also deterrence. The authorities which articulate this policy include HKSAR v Hong Chang Chi [2002] 1 HKLRD 486, Abdallah (above), HKSAR v Chung Ping Kun [2014] 6 HKC 106 and HKSAR v Lau Chun Sing [2011] 2 HKLRD 551. Over three kilogrammes of cocaine was involved in this case. The courts of Hong Kong have, since the case of Abdallah (above), accepted a two-year enhancement in passing sentence in drug trafficking cases where there is an international background. Having regard to the fact that this is the first time she has committed the offence of trafficking in a dangerous drug, the court considers a two-year enhancement is already a sufficient punishment. Given it is now appropriate to take account of the role of the accused including the relevant culpability of persons who are couriers across international borders, there would be an element of double counting in assessing sentence for international couriers. I use the phrase “an element” because I consider that in some respects, the sentencing policy which on the one hand underlies the assessment that the relative culpability of the kind of courier which brings drugs against across a courier or international boundaries, the enhancement for taking such dangerous drugs across the borders is not necessarily co-extensive.
Assistance to Authorities
Where a person in a position such as the accused provides or offers to provide assistance to the authorities, that assistance can be recognised by way of a discount. The basis for any discount is usually utility. If the accused offers assistance which is of practical use, then a discount should be given depending on the nature and extent of the assistance and whether such assistance places the accused in any form of jeopardy.
Application of Sentencing Principles
On the basis of an arithmetic calculation of the appropriate starting point, 25 years’ imprisonment would be appropriate.
I consider that acting as a courier in the specific circumstances and crossing international borders and trafficking in a substantive quantity of cocaine puts this woman in a much more serious light but I assess the appropriate starting point for her culpability, taking account of that, at 26½ years.
The accused has pleaded guilty at the earliest practicable opportunity. She is entitled to a full one-third discount for her sentence.
There is also the assistance that the accused has given after she was incarcerated through the programmes run by Father John Wotherspoon. In this case, she is not a lone voice but has, in effect, joined a chorus of voices. The authorities recognised that some discount, sometimes as much as 3 months, should be given for such assistance. I am informed and I accept that she continues to take part in that programme. The concatenation of circumstances in this case have allowed the assistance to continue whilst she has been under consideration for sentence. I am proposing to give, in this case, not 3 months but 4 months. This I regard as a down payment to recognise perhaps a change of direction in her attitude to drug trafficking. I will leave it to the executive to determine whether any further discount might be accorded to her for continued assistance. That leaves the outcome in this regard completely in her hands.
The accused has also offered assistance to the authorities. In the circumstances, a detailed statement was provided. Time was taken because some of the information needed to be examined by overseas authorities. However, that assistance has been carefully reviewed and has been found to be of no practical use. Just pausing there for a moment. Mr Sadhwani suggested to me today that it might be appropriate to further adjourn the matter to see how things develop so far as that assistance is concerned. If I thought there was any realistic prospect of that happening, I would not have hesitated to adjourn the matter. However, I am satisfied that in the circumstances, an adjournment would simply be putting off the inevitable. I accept that the assessment has been made appropriately by the customs authorities of Hong Kong and was made in good faith.
While the assistance has been assessed as of no practical use, the preparedness of the accused to assist is a material factor which is something I am entitled to take into account in mitigation of sentence. I think it is fair to say that in the circumstances she has done her best to assist the authorities even if, in the result, it is of no practical use to the authorities. I distinguish her case and the many cases I have seen where the offer is one in which the accused gives a statement to the authorities which simply goes through the motions and is, in effect, designed to fail. I do not think that is the situation here. Accordingly, I propose to enhance the discount that would ordinarily be accorded to an accused person in this situation and her overall discount will be 38 per cent.
This woman has agreed to traffic in dangerous drugs notwithstanding she has four children. The tragedy of this case is just when her children need her the most, she will be imprisoned in Hong Kong. I recognise that the temptation to repay loans, make quick easy money exists but that cannot help the accused in this case. Her starting point is 26½ which is reduced by 4 months for her assistance to date in Father John’s programme. That puts her starting point at 26 years and 2 months. There is an enhanced discount of 38 per cent which comes off the ultimate starting point of 26 years and 2 months. The least sentence that I can impose upon you is 16 years and 2 months and that is the sentence of the court.