HKSAR v. PHUANGTHONG THIENSUDA

HCCC 193/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 193 OF 2015

-----------------

------------------

---------------------------------

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

---------------------------------

COURT: Before me, the defendant pleaded guilty to one count of trafficking in a dangerous drug. In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular, the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on her behalf.

The facts of the case may be summarised as follows. On 11 August 2014, the defendant, a Thai woman, arrived in Hong Kong from Brazil by air. She was intercepted by Customs Officers at the Arrival Hall of the Hong Kong International Airport. Upon search of her suitcase, seven containers of haircare products were found. Inside six of the containers, suspected dangerous drug was found concealed under the cream. The substance was later confirmed to be a solid substance containing cocaine. The defendant was arrested.

Under caution, the defendant admitted the items were hers but denied knowledge of the drug. In a subsequent interview, she said her Nigerian boyfriend had introduced her to a black man whom she called “Big C Man”. Big C Man asked her to bring some clothes back from Brazil to sell in Thailand. Air tickets and hotel were arranged for her. She was also given US$775 and the expenses when she was in Brazil.

After she had been in Brazil for a week, a man called “Jeff” communicated with her for the arrangement. Later, they had argument. The defendant thought it was for something bad and said she would not carry anything for him unless she was told what it was. Jeff told her to meet him for the ticket back to Thailand but on that day, he did not appear. She then talked to wife of Big C Man and learnt that there were no clothes to bring back but Jeff would need her to bring something to his friend in Hong Kong.

In the evening on the day she boarded the plane, Jeff gave her the haircare products and put them in her suitcase. One of the containers was opened and she thought it was hair strengthening solution. She was given US$200 for her expenses in Hong Kong. She did not know she was carrying dangerous drug.

She now admitted that she was trafficking in the dangerous drug. The dangerous drug which the defendant trafficked in was a total of 1,628 grammes of a solid substance containing 983 grammes of cocaine. The market value of the drug was about $1.6 million.

I was told that the defendant is now 35 years of age. She is divorced and has a 7-year-old daughter. She has completed a bachelor degree in the Siam University. She had worked as a factory worker for two years and earned about US$200 a month. She was living with her parents in Thailand. Her mother, who is taking care of the defendant’s daughter, is suffering from cancer. The defendant did not have a criminal record in Hong Kong.

In mitigation, learned defence counsel, Mr Midgley, stressed that the defendant committed the offence under duress which was of a degree less than sufficient to support a defence, or at the least coercion which she suffered after she had arrived in Brazil, under the belief that she was to buy clothing there for sale back in Thailand.

Mr Midgley also urged the court to take into account the effort of the defendant in joining a campaign launched by Father John Wotherspoon of warning people in various notorious places against being exploited or even cheated by drug syndicates. The defendant had written letters to family and friends and openly shared her experience in magazines published in Thailand. Father Wotherspoon wrote a mitigation letter and also testified on what the defendant had done in the campaign. The father said that he believed the defendant is a person of good nature.

Mr Midgley also told the court that the defendant did provide the authorities with information. The court was told that no fruitful result had been yielded so far.

For cases of trafficking in cocaine, the Court of Appeal held in AG v Pedro Nel Rojas [1994] 3 HKCLR 69, that in a case of trafficking in cocaine, the guidelines in Queen v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm. In Lau Tak Ming, a sentence of more than 20 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is over 600 grammes. In the subsequent case of HKSAR v Abdallah, CACC 304/2008, the Court of Appeal held that a sentence of 20 to 23 years’ imprisonment should be considered if the narcotic content of the heroin trafficked in is 600 to 1,200 grammes.

Since the defendant brought dangerous drug into Hong Kong, it is an aggravating factor. In my judgment, the starting point should be enhanced by 18 months. Having considered the whole circumstances, I adopt an ultimate starting point of 23 years and 3 months.

The defendant is entitled to a one-third discount for her guilty plea, her previous clear record and remorse she had expressed. I have considered very carefully whether the defendant is entitled to any further discount for what had been put forward in mitigation on her behalf.

The court was told that the defendant went to Brazil for an innocent and legitimate purpose of buying clothes. It was only a few days after she had arrived in Brazil that she was told to carry drugs. Her immediate response was one of refusal. Despite her begging, she was told that if she did not do so she would be stuck in Brazil. She was lacking of means to return to her home and was even deprived of food. There was nobody to help her and she was drained both physically and mentally. In the circumstances, she succumbed and committed the offence.

There are authorities which suggested that if an accused commits an offence as a result of coercion or pressure, a lower sentence may be considered.

Mr Midgley urged the court to consider sentencing on the factual basis which the court has been informed. In this regard, Ms Grace Chan, Senior Public Prosecutor who appeared on the last occasion, informed the court that the prosecution was not in a position to either accept or challenge the assertion put forward by the defence. She further told the court that the prosecution was prepared to let the court decide whether to accept the assertion on the information available to the court. She did not advocate for a procedure to test the veracity of the assertion.

In consideration, I have taken into account what the defendant has said in her video-recorded interview, what I understand she had informed the authorities and what was stated in the Time Magazine produced and the translation of one of the relevant articles. There are some discrepancies between these materials and what the court heard but there is no substantial contradiction.

The core story can be said to be consistent. That in the circumstances the defendant at least might have been subjected to coercion of the nature and degree Mr Midgley described is not an assertion so unreasonable that it should be rejected as a factual basis of mitigation. Not without reservation, I am prepared to consider sentence on the basis of what the court had been told.

Taking into account the background of the defendant and the circumstances she was in, in my judgment, the defendant is entitled to a further discount for this matter but the extent should only be minimal. She had put herself in a vulnerable situation under a circumstance which was highly suspicious and this should have been obvious to her. She might be in a difficult situation but, as Mr Midgley rightly assessed, the nature and degree of the coercion fell far sort of duress as a defence. She took no step of aborting the crime even as late as having arrived in Hong Kong.

As regards the defendant’s assistance to the authorities, no doubt she had provided information. However, there was no fruitful result. It may not be something unexpected as the information provided is in relation to people aboard. Nevertheless, there are clear authorities that, in the circumstances, the defendant cannot expect the court to afford her any further discount. I see no reason to depart from these authorities.

As regards what the defendant had done in the campaign launched by Father Wotherspoon, I have had regard to the case of HKSAR v Akinyi Grace Sylvia, CACC 324/2015, which was drawn to my attention by Ms Grace Chan. In that case, the Court of Appeal recognised efforts of such nature amounts to assistance in combating drug trafficking. Even though the assistance was not rendered to the authorities directly, it was recognised that the government and the community would benefit from it ultimately. The campaign of Father Wotherspoon should be praised. In that case, the Court of Appeal did not interfere with an otherwise rightly decided sentence and held that it would a matter for the Executive to determine whether assistance of this kind by serving prisoners should be rewarded by use of the Executive power of clemency.

The defendant in the present case is not in exactly the same position as she is not yet a serving prisoner and the court is not considering whether to interfere with a sentence already imposed. A proper sentence should be imposed to reflect the criminality of the offence the offender had committed. Whilst the effort of the defendant should be recognised, it is not of the same situation as a defendant who provided valuable information against a specific crime which led to a fruitful result.

In my judgment, the matter should best be left with the Executive to assess the degree of contribution and its effectiveness if the defendant continued to participate in the campaign and decide whether such assistance should be rewarded by use of the Executive power of clemency.

Having considered the whole circumstances, including what learned defence counsel said on behalf of the defendant, I am prepared to give her 9 more months of discount.

For the reasons I have mentioned, I sentence you to an imprisonment term of 14 years and 9 months.