HKSAR v. IIS NURTIWI AND ANOTHER

HCCC 287/2023

[2024] HKCFI 675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 287 OF 2023

________________________

________________________

_______________________________________

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

_______________________________________

COURT: The 1^st and 2^nd defendants respectively pleaded guilty to one count of trafficking in a dangerous drug on 16 December 2021 at Room 1, Flat C3, Block C, 5^th Floor, Mirador Mansion, No. 58 Nathan Road, Tsim Sha Tsui, which I will define as “the premises”, involving 1,059 grammes of a crystalline solid containing 1,032 grammes of methamphetamine hydrochloride, commonly referred to as ‘Ice’; and 1,207.1 grammes of a crystalline solid containing 931.1 grammes of cocaine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Summary of Facts

At 7.58 pm on 16 December 2021, police stopped the 1^st defendant in the lift lobby of 5^th Floor, Mirador Mansion, Tsim Sha Tsui. Police then escorted D1 to the premises where D1 said she left her recognisance document. At the premises, the 2^nd defendant opened the door and the police conducted a search on both defendants and the premises under a search warrant.

The following items were found at the premises:

(i)  HK$4,000 cash in the 1^st defendant’s handbag;

(ii)  HK$2,880 belonging to the 2^nd defendant;

(iii)  a set of keys to the premises on top of a drawer next to a bed.

The following items were found underneath the aforementioned bed at the premises:

(i)  two plastic bags respectively containing 675 grammes of a crystalline solid containing 675 grammes of ‘Ice’ and 147 grammes of a crystalline solid containing 121 grammes of ‘Ice’;

(ii)  one plastic bag containing 47.1 grammes of a solid containing 38.1 grammes of cocaine;

(iii)  eight empty resealable plastic bags; and

(iv)  one electronic scale.

The following items were also found hidden on top of a false ceiling inside the toilet:

(i)  a plastic bag containing 236 grammes of a crystalline solid containing 236 grammes of ‘Ice’;

(ii)  one plastic bag containing 1.16 kilogrammes of a

solid containing 893 grammes of cocaine.

The defendants were subsequently arrested. The total street value of the drugs found was HK$2,319,278.80.

The 1^st defendant stated in her cautioned statement and the subsequent video-recorded interview that:

(1)  She met the 2^nd defendant at Mirador Mansion six months prior to the arrest and she had been staying in the premises with the 2^nd defendant for three months prior to the arrest.

(2)  The dangerous drugs underneath the bed belonged to the 2^nd defendant. The 2^nd defendant worked for a Nigerian male named “Daniel”. The 1^st defendant accompanied the 2^nd defendant to sell dangerous drugs inside Mirador Mansion.

(3)  The 2^nd defendant would open the door to allow the 1^st defendant and Daniel into the premises, and only the three of them had access to the premises.

(4)  She knew that the three plastic bags of solids underneath the bed were methamphetamine and cocaine.

(5)  She witnessed the 2^nd defendant using the electronic scale to weigh and pack dangerous drugs into the resealable plastic bags for four times.

(6)  Her reward for trafficking dangerous drugs was free accommodation in the premises.

The 2^nd defendant stated in her cautioned statement and the subsequent video-recorded interview that:

(1)  She had trafficked dangerous drugs for three months for an African male known as “Daniel” for a reward of HK$4,000 to $10,000 each month.

(2)  She knew that the three plastic bags of solids underneath the bed contained methamphetamine and cocaine. The drugs were given to her by Daniel.

(3)  She would pack the dangerous drugs under the bed into resealable plastic bags and sell them to others inside Mirador Mansion.

(4)  She knows that one gramme of methamphetamine would be sold for $260 and one gramme of cocaine would be sold for $700.

(5)  2,000 out of the $2,800 found at the premises were dangerous drug proceeds and the African male, Daniel, would go to the premises to collect such proceeds from the 2^nd defendant.

(6)  The reward for selling the drugs for the African male would be 4,000 to $10,000 per month.

The defendants further admitted that they unlawfully trafficked the dangerous drugs found at the premises.

Background of D1 and D2

Both defendants were born in Indonesia and both were Form 8 recognisance holders. At the time of the offence, they were both unemployed.

The 1^st defendant is now 38 years old. She is married with a son aged 11 and a daughter aged 5. The 1^st defendant came to Hong Kong in 2019 and worked as a domestic helper, and then later became unemployed. Since then, she relied on financial assistance provided by the International Social Service and her friends. The 1^st defendant claims that she accompanied the 2^nd defendant to traffic in dangerous drugs for free accommodation only.

The 2^nd defendant is now 30 years old. She is the mother of two young daughters, aged 8 and 4, but she is now separated from her husband. The 2^nd defendant claims that she had been saddled with significant debts accumulated by her husband and was in dire financial straits. The 2^nd defendant came to Hong Kong to work as a domestic helper, but had been unable to find employment since she was terminated in her last job as a domestic helper. The 2^nd defendant claims that the Nigerian male “Daniel” manipulated her into trafficking dangerous drugs for him by taking advantage of her vulnerable financial position, and the 2^nd defendant said she did not fully appreciate the consequences of what she did. The 2^nd defendant stated that she succumbed to momentary greed in the hope of making some quick money and foolishly committed the present offence.

Consideration

The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach set out in Yusuph.

The first step is to identify the relevant guideline band or bracket applicable to the type and quantity of drug concerned.

In HKSAR v Abdallah [2009] 2 HKLRD 437, for quantities of cocaine of 600 grammes to 1,200 grammes, the Court of Appeal set out the sentencing band of 20 to 23 years’ imprisonment. For quantities between 1,200 grammes and 4,000 grammes, the sentencing band is set at 23 to 26 years of imprisonment.

For ‘Ice’, following HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for quantities of 600 grammes and over, the same tariffs as prescribed in Abdallah also applies.

In cases concerning trafficking a cocktail of multiple drugs, according to HKSAR v Yip Wai Yin and Another[2004] 3 HKC 367, the court will first need to consider whether the ‘individual’ approach or the ‘combined’ approach should be used. For the ‘individual’ approach, the court will look at each component of the cocktail and then sentence by adding up the different sentences relevant to each individual drug. For the ‘combined’ approach, the court will look at the overall quantity of drugs rather than the individual parcels to access, realistically and fairly, the appropriate sentence. In HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, it was further held that: as a rule of practice, where the sentencing brackets for the two types of dangerous drugs are

not dissimilar, it is appropriate to adopt the ‘combined’ approach, whereas if the two drugs are disparate in quantity and potency, the ‘individual’ approach is to be preferred.

In the current case, on a pure arithmetical basis, 1,032 grammes of ‘Ice’ would attract a starting point of 22 years and 1 month after rounding down, and 931.1 grammes of cocaine would attract a starting point of 21 years and 7 months after rounding down.

Since the sentencing band for ‘Ice’ and cocaine of the quantity involved are exactly the same, the combined approach is clearly more preferable.

In the current case, the ‘Ice’ and cocaine yield a combined total weight of 1,963.1 grammes. On a pure arithmetic basis, and rounding down to the nearest month, this would attract a starting point of 23 years and 9 months’ imprisonment. The absurdity test, conversion test, and ratio test would all result in the same starting point of 23 years and 9 months’ imprisonment.

Enhancement

There are a number of factors in the present case which require me to enhance the starting point.

Firstly, in terms of the defendants’ role and culpability in the present offences, it would appear that both defendants were manipulated and taken advantage of by the Nigerian male referred to as “Daniel”. The proceeds from the sale of the drugs were to go back to Daniel. I accept that both defendants are at the bottom of the drug trafficking operation. But it is also a fact that both defendants were involved in direct selling of the drugs, which makes them more culpable than the ordinary courier or storekeeper - see Herry Jane Yusuph at paragraphs 61 to 64. For this factor, I will enhance the starting point by 3 months.

Secondly, the fact that there were two drugs involved in the present case is another aggravating factor, since the availability of both ‘Ice’ and cocaine allows the trafficker to reach a wider market - see for example HKSAR v Yim Hung Lui Ricky, CACC 266/2011 at paragraph 11. For this factor, I will enhance the starting point by 3 months.

Thirdly, both defendants were Form 8 holders, and this is a well-recognised aggravating factor - see HKSAR v Ali Saif [2018] 6 HKC 19 at paragraph 17. As stated by the Court of Appeal in that case:

“If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognisance holders, whose refoulement applications may take several years to deal with, must be firmly discouraged from being involved in serious crimes, whilst their applications are being processed.”

Given the circumstances of the present case, the proper enhancement in my judgment is 12 months - see HKSAR v Joof Saihou [2018] HKCA 362 at paragraphs 29 to 36.

Taking into account the enhancements, the starting point adopted for both defendants will be 25 years and 3 months.

The next step is to consider all mitigating factors simultaneously when assessing the overall discount of the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in both Abdallah at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Accordingly, the defendants’ personal circumstances do not constitute mitigating factors for the purposes of the fifth step.

The main mitigating factor in this case is the defendants’ guilty plea. Both defendants are entitled to one-third discount off the starting point which brings the notional sentence down to 16 years and 10 months’ imprisonment after rounding down.

From the materials provided to me, I can see that the 1^st defendant made contributions to Father John Wotherspoon’s anti‑drugs campaign. Father Wotherspoon wrote a letter to this court detailing how the 1^st defendant contributed to his campaign by writing several simple but detailed letters describing how she got involved in drug trafficking, the sad effects of her detention, the sad effects that her detention have had on her life, as well as her sincere remorse. In HKSAR v Fundi Furaha Giles [2019] HKCA 154, the Court of Appeal held that the sentencing court has a discretion to offer a discount for significant contributions to Father Wotherspoon’s campaign of no more than 3 months, but the Court of Appeal also considered that simply writing a few letters for Father Wotherspoon’s campaign would attract nothing more than a very token discount (see paragraphs 22 to 23 of the judgment). As such, in the current case, I consider that a 2-month discount for the 1^st defendant is appropriate.

In respect of the 2^nd defendant, it was submitted that the 2^nd defendant had attempted to provide information on the identity of the African black male who led her into drug trafficking. A police interview was conducted with the 2^nd defendant, but the 2^nd defendant was unable to provide the police with anything more than a Facebook account containing a purported full name of the male, photos of the male, along with possible public places where the black male may be found. Whilst I appreciate that the 2^nd defendant had tried her best to assist the police, the unfortunate conclusion is that the information provided was not sufficient to be of practical value. I am constrained by authority that, in these circumstances, no extra discount can be afforded to the 2^nd defendant - see HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, paragraph 77 to 85 and 191, as well as HKSAR v Yeung Hoi Ting [2019] 5 HKC 511 at paragraph 95.

There are no further mitigating factors justifying any further reduction in sentence.

Conclusion

In conclusion, the 1^st defendant is sentenced to 16 years and 8 months’ imprisonment and the 2^nd defendant is sentenced to 16 years and 10 months’ imprisonment.