HKSAR v. SITI HAZIQAH BINTI SHAHARIL AND OTHERS

HCCC 295/2019

[2020] HKCFI 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 295 OF 2019

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

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COURT: I do not propose to keep the three of you in suspense. You, Aisyah, are going to prison for 13 years and 4 months whereas you, Aqilah, and you, Haziqah, are going to prison for 13 years and 6 months.

When I have left court, your lawyers will explain to each of you when you are likely to be released from prison, bearing in mind the rules about remission, the length of time you have been in custody on remand and the absence of any treaty between Hong Kong and Malaysia which provides for the repatriation of prisoners to serve part of their sentences in their home country. In the meantime, you may sit down while I explain my thinking.

By your pleas of guilty, you have acknowledged that you knew that you were bringing dangerous drugs into Hong Kong. I have not been told of any evidence which shows where you were in the distribution chain, but there is absolutely nothing to suggest that you were not just couriers paid to bring this ‘Ice’ into Hong Kong from Malaysia, nor is there anything to suggest you have done this before, and therefore there is no basis for saying that you were, for examples, well-established and seasoned for couriers.

You will all have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in ‘Ice’. The court is required to focus on the weight of the narcotic content of the drugs. The weight of the narcotic content of the consignment in your case, Haziqah, was 736 grammes. The weight of the narcotic content of the consignment in your case, Aqilah, was 977 grammes. And the weight of the narcotic content of the consignment in your case, Aisyah, was 733 grammes.

The guidelines say that the appropriate range for people who are convicted of trafficking in between 600 and 1,200 grammes of ‘Ice’ is 20 to 23 years’ imprisonment. That is the appropriate range for people like the three of you who have been convicted after pleading not guilty. There is no reason for departing from the guidelines in your cases. Indeed, the starting point should be enhanced because of the international element in your cases.

The international element consisted of the three of you bringing this ‘Ice’ into Hong Kong from abroad. And the Court of Appeal has suggested that where a sentence has to be enhanced because of the international element, that enhancement should be between 1 and 2 years’ imprisonment where the narcotic content of the consignment is between 500 and 1,000 grammes.

On the other hand, it is impossible not to acknowledge that all this has been a personal tragedy for each of you. We all occasionally make bad decisions in our lives but rarely do they have such dire consequences as these. Your decision to make this run may have seemed at the time a good if risky way of making some money, but I do not suppose a day passes without you regretting what you did.

Some people say that our sentencing regime should distinguish far more than it does between the couriers like yourselves and those further up the distribution chain, those perhaps much closer to the people who actually run this trade and who are far more heavily implicated in it than you. It is not without significance that relatively humble people like the three of you who are persuaded to run the risk of carrying drugs across international borders are called “mules”, that being a metaphor for someone who is being used and manipulated.

Other people may think that the focus which our sentencing regime places on the weight of the drugs is too blunt an instrument when couriers like you may well not know the amount of the drugs they are smuggling into Hong Kong or what kind of drugs they are. And in such a case, a standardized sentence may well not reflect the offenders’ true culpability. But these are matters which have been addressed by our Court of Appeal, and I must loyally follow the guidelines which the Court of Appeal has said should apply to cases such as yours.

Having said that, I can take into account, at least to a limited extent, your personal circumstances, though again the Court of Appeal has said that they carry little weight in cases such as these. Those circumstances include the fact that none of you had even been in trouble before, your chances of marrying and having children are now significantly reduced in view of your current ages: one of you is 30, the other two are 31, as well as the length of time you will be in prison for and that you may well have been selected by those further up the distribution chain to be couriers because you were regarded as vulnerable and easily influenced.

In your case, Aqilah, I have also read the moving letters from members of your family and the attempts that you and Haziqah have made to obtain qualifications to enable you to obtain employment on your release from prison. I appreciate that you will be serving your sentences in Hong Kong. I know that the Court of Appeal has said that drug traffickers from abroad importing drugs into Hong Kong will receive no sympathetic consideration whatsoever on account of their incarceration some distance from home. I shall loyally follow that. But the fact does remain that, unlike other prisoners, you may not have many fellow prisoners who speak your mother tongue and you will not have the opportunity of regular visits from members of your family.

The weight of the narcotic content of your consignment, Aqilah, was greater, and in view of the focus which our sentencing regime places on the weight of the consignment, I have little alternative but to distinguish between you and the others to a modest extent, even though it may simply have been chance that your consignment happened to weigh more than theirs.

Finally, I am aware of the very modest discount in sentence which can be given to those offenders who provide real and practical assistance to the efforts being made in Hong Kong to discourage people from overseas from importing drugs into Hong Kong. You, Aqilah, took active steps to ensure that the cases of the three of you were publicized in Malaysia by writing to a reporter in Malaysia about your plight following your arrest. That is said to have resulted in the publication of an article in a local newspaper in Malaysia of what happened to you. And although I have not seen that article, I am prepared to proceed on the assumption that such an article was published, and on that basis, I think I can assume that it would have brought home to people who might be tempted to act as couriers transporting drugs across international borders how serious the consequences are if they get caught.

I cannot make any assumptions about whether since the publication of that article, there have been fewer arrests of people bringing drugs into Hong Kong from Malaysia but I am prepared to reduce the starting point I would otherwise have taken in your case, Aqilah, by 3 months for that reason. I do not believe that I should deny you, Aisyah, that reduction either since the letter was written on behalf of the two of you and it just happened that it was Aqilah who wrote it. I cannot give you, Haziqah, that reduction because your counsel has said that you had nothing to do with that letter at all.

You all pleaded guilty at an early opportunity and therefore I reduce the sentences I would otherwise have imposed by one-third. The sentences that I therefore pass are the shortest that I can possibly pass in the circumstances. The starting points that I have selected in your cases, Haziqah and Aqilah, are 20 years and 3 months’ imprisonment whereas the starting point I have taken in your case, Aisyah, is 20 years’ imprisonment. Will the three of you stand up, please?

The effect of all that is that the sentence which I pass upon you, Haziqah, that is the 1st defendant, is one of 13 years and 6 months’ imprisonment. The sentence which I pass on you, Aqilah, the 2nd defendant, is also one of 13 years and 6 months’ imprisonment. And the sentence I pass on you, Aisyah, the 3rd defendant, is one of 13 years and 4 months’ imprisonment. They may be taken away.