HKSAR v. Sugiyanti and Another

HCCC 35/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 35 OF 2015

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

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COURT: There are two defendants in this case. They are originally jointly charged with one count of trafficking in a dangerous drug. D1, Sugiyanti, pleaded guilty to the offence. D2, Nanik, was found guilty by the jury after trial.

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 concerned, the background of the defendants and mitigation put forward on their behalf.

The facts of the case may be summarised as follows. On 17 July 2014, the two defendants walked out together from a building and proceeded to the nearby Jordan MTR Station. They were stopped by the police. Inside the black Eco bag which D1 was carrying, three plastic bags with packets and pellets of cocaine inside and a can containing pellets of cocaine were found.

Inside the Eco bag were also an electronic scale and three bundles of resealable transparent plastic bags. These items were put underneath a cabbage and two packets of baby corn. D2 had no dangerous drugs with her.

Both defendants were arrested. Under caution, D1 said it was a Pakistani person who brought some cocaine for her. In a subsequent interview, she said she had met this Pakistani male before. He asked her whether she wanted to work for him by delivering goods for which she would be paid $1,500. The Eco bag had been given to her by this man.

Upon arrest, D2 said under caution that it was Phillip who gave her $1,000 for collecting stuff with a female. In a subsequent interview she said at the flat which D1 had taken her to, she saw D1 taking out the stuff from the refrigerator and D1 had told her what the items were. The basis against D2 which the prosecution put forward for the jury’s consideration was whether D2 was aiding and abetting D1. The implication of the verdict is that the jury was satisfied that D2 had aided and abetted D1 in the latter’s trafficking in the dangerous drug involved.

The dangerous drug trafficked in was cocaine and the total quantity was 1,628.98 grammes of a solid containing 725.27 grammes of cocaine. The market value of the drug was about $1.7 million in July 2014.

I was told that D1 is now 34 years old. She is an Indonesian and she came to Hong Kong in 2013 to work as a domestic helper. She is divorced. She received form five education in Indonesia. She did not have a criminal conviction record in Hong Kong.

D2 is 33 years of age. She is also an Indonesian. She came to Hong Kong in 2002 and had worked as a domestic helper. She has been unemployed since 2011. She has also received education up to form five in Indonesia. She did not have a criminal conviction record in Hong Kong.

In mitigation, learned defence counsel Mr McGowan stressed that D1 had pleaded guilty at the earliest opportunity. D1 is now full of remorse. Mr McGowan also informed the court that when D1 first came to Hong Kong to work as a domestic helper, she had to borrow $21,000 to pay the agent and related fees. The first seven months of salary was used to pay off the debt. She has a son now 7 years of age being looked after by her mother. Her husband deserted the family soon after the birth of their son. She sent money back to her mother to support her and her son.

When her last contract expired, she stayed in Hong Kong since she has started a relationship with a man. This man left her later. D1 started a relationship with another man and it was this man who swayed D1 into engaging in the present offence. There was an element of exploitation. D1 did offer assistance to the authorities by providing a non‑prejudicial statement as well as indicating her desire to testify for the prosecution. A letter of the defendant was submitted to the court in which she indicated her remorse, setting out her background and asks for leniency.

On behalf of D2, Mr Percy asked the court to take into account that the allegation against D2 was only that she was aiding and abetting D1. He reminded the court that D2 was brought up by her grandmother as she was deserted by her parents. She came to Hong Kong to work as a domestic helper when she was 19 years old. She sent money back to Indonesia to support her family. When her employment finished she stayed in Hong Kong living with a man. She had been trying her best to engage in casual employment. Mr Percy stressed that it was under these circumstances that D2 was exploited by the man Phillip who lured her with a reward of $1,000 a day to engage in the matter. She only came to know that it involved dangerous drugs at a late stage, and she had not been told the quantity involved.

The Court of Appeal held in AG v Pedro Neil Rojas [1994] 2 HKCLR 69 that in a case of trafficking in cocaine, the guidelines in The 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.

For the case of D1, Sugiyanti, there is no reason to justify any departure from the sentencing tariff. Having considered the whole circumstances, in my judgment a starting point of 20½ years is appropriate for D1. She is entitled to a one-third discount for her guilty plea, her previous clear record and the remorse she has expressed. Having considered the whole circumstances, including what learned counsel said ably on her behalf, I do not consider a further discount is justified - bearing in mind the assistance provided by D1 so far bears no fruit though it was the submission of Mr McGowan that it was not a result of the fault of D1.

For the case of D2, Nanik, the basis of conviction is that she was aiding and abetting D1 in the latter’s trafficking in the dangerous drug. Neither she nor D1 was a ringleader, though D1 had played a more active role. The dangerous drug was taken out from a flat to which D1 had access. It was D1 who had physical possession of the dangerous drug. D2 played a supporting role only. Nevertheless, she shared basic criminality with D1. She was doing this on a promise of a monetary reward. She knowingly aided and abetted in this evil crime. In the case SJ v Tso Tsz Kin CAAR 1/2003, Stuart-Moore VP observed:

“It is trite that where two people set out to commit the crime together, each taking a different role but with an awareness of what the other is proposing to do, there should be no distinction made between the sentences based on the roles they have played.”

In my judgment, there was a distinction between the culpability of the two defendants, but it was not substantial. A starting point of 20 years is appropriate for the case of D2. D2 was found guilty after trial, having considered the submission made on her behalf. I do not consider any discount in sentencing is justified for D2.

D1, Sugiyanti, for the reasons I have mentioned, I sentence you to an imprisonment term of 13 years and 8 months.

D2, Nanik, for the reasons I have mentioned, I sentence you to 20 years’ imprisonment.