HKSAR v. Siti Namira Andriyani

HCCC 202/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 202 OF 2015

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REASONS FOR SENTENCE
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1.The defendant was committed for trial in the Court of First Instance on a single count of trafficking in a dangerous drug which was listed to be heard on 2 June 2016. Before the trial the defendant indicated that she would plead guilty to the offence.

2.The defendant has now admitted her guilt to the count on the indictment of trafficking in a dangerous drug, namely 650 g of a mixture containing 281 g of heroin hydrochloride and 186 g of 6‑monoacetylmorphine hydrochloride.  She admits and accepts that she knowingly possessed the drugs in question for the purpose of unlawful trafficking. 

3.The background facts to the offence committed by the defendant can be briefly stated as follows.  The defendant is a 32-year-old Indonesian female.  In the afternoon of 17 December 2014, she arrived at Hong Kong International Airport on a flight from Malaysia.  On the next day in the morning, she was intercepted by Customs officers at the Customs Departure Hall of the Shenzhen Bay Control Point.  She was carrying a handbag and a suitcase. Customs officers searched the handbag and found inside a packet wrapped in adhesive tape containing brown powder which tested positive for heroin.  She was arrested, and under caution she said that she did not know what it was and that a man in Malaysia gave it to her.  Also found in her possession were three mobile phones and a coach ticket for a journey from Hong Kong Airport to Guangzhou on that day.

4.The defendant acknowledges that she knew she was in possession of the drugs and that it was for the purpose of trafficking in them. 

5.The estimated retail value of the drugs at the time of the offence was $523,900.

6.There is very little known about the defendant other than what she has told the authorities.  She is single and has attained tertiary level education.  Submitted on her behalf were her university certificates for a tertiary qualification in Communications.  Both parents have passed away.  Her father recently passed away while she was in custody.  She has two younger sisters.  She says that she operated an online business and had a monthly income of about $1,300 Hong Kong currency.  I am informed that the business consisted of selling clothes and handbags online.  She has also confirmed that she is not a drug user.

7.It has been submitted on the defendant’s behalf that she got involved in transporting the drugs because of her association with an African male known as “Sheriff”, who she met online.  During this time, Sheriff was based in Kuala Lumpur, Malaysia, and she soon struck a relationship with him.  She visited him three or four times.  I am told that he talked her into bringing the drugs to Hong Kong.  He promised that he would marry her and on her return would help her open a bakery.  It is submitted that she agreed to do what he asked in order to make a better life for herself and her family.  He instructed her once in Hong Kong to take the drugs to Guangzhou.  He paid for all her expenses.  He has not contacted her since her arrest. 

8.Unfortunately for the defendant this provides no meaningful mitigation on her behalf.  It is clearly apparent that she was fully aware of what she was doing and the risk that she was undertaking by bringing the drugs into Hong Kong for onward transmission to Guangzhou. 

9.In HKSAR v Daresa Mariam Guma, CACC 155/2012, 5 October 2012, unreported, Walters J (as he then was), giving the judgment of the Court of Appeal, explained that it is a notorious fact that persons from an impoverished background in underdeveloped countries are frequently employed by drug traffickers as drug couriers and drug mules to transport drugs from one country to another and regrettably the persons most readily tempted by this kind of crime are persons who come from desperate circumstances and so are more likely to be willing to assume the risks attendant upon international drug trafficking.  He emphasised that it is for this very reason that the courts will not be swayed by the plight of the trafficker.  

10.The sentencing guideline cases for drug trafficking have stressed that the gravity of the crime is such that it may result in otherwise mitigating factors having little, if any, weight.  It was explained by the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437 at §32, that because of the grievousness of the offence, “a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally”, meaningful mitigation, apart from a plea of guilty, is rarely available.  The Court of Appeal went on to emphasize:

“The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”

11.Also with these statements in mind, Walters J, went on to explain at §11:

“It is, of course, harder for the courts to ignore the suffering of innocent third persons who might be affected by the long period of imprisonment imposed upon the drug trafficker. But this suffering is not visited upon them by the courts but by the drug trafficker who succumbs to the lure of easy money. The court cannot allow the impact upon third parties to influence it into imposing a sentence less than that which is otherwise appropriate for the crime that has been committed.”

12.But it still remains a very important function of the sentencing court when seeking to achieve individual justice to know the background of the offender and the circumstances in and by which the offender got involved and participated in the offence.  There may be factors that reduce the culpability of the defendant or the extent to which he or she should be punished.  In the present case the only mitigating factor that can be properly taken into account is the defendant’s plea of guilty for which she is entitled in the circumstances of this case to a one-third discount. 

13.As noted by the particulars of the count, the narcotic content of the mixture consisted of 281 g of heroin hydrochloride and 186 g of 6‑monoacetylmorphine hydrochloride.  The latter drug is commonly known as morphine which can be a hydrolysed product of heroin.  It is listed as a prohibited drug under the First Schedule of the Dangerous Drugs Ordinance, Cap 134, and recognised as having similar potency and toxicity as heroin.  See HKSAR v Daresa Mariam Guma, CACC 155/2012, 5 October 2012, unreported, at §3. 

14.Accordingly, I shall combine the quantity of the two drugs when applying the tariff case of R v Lau Tak Ming [1990] 2 HKLR 307.  The combined quantity of 467 g falls within the tariff band of between 400 and 600 g with a term of imprisonment after trial of 15 to 20 years.  I will therefore adopt a starting point of 16 years and 6 months’ imprisonment.  There is an international element which is an aggravating factor requiring enhancement of the sentence, and I will increase the sentence by 1 year.  I will reduce the starting point of 17 years and 6 months’ imprisonment by one-third for the defendant’s plea of guilty, thereby resulting in a sentence of 11 years and 8 months’ imprisonment.

Ms Grace Chan , SPP of the Department of Justice, for HKSAR

Mr Kamlesh Sadhwani, instructed by Messrs Morley Chow Seto,assigned by Director of Legal Aid, for the defendant