HKSAR v. Fitri

HCCC 266/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 266 OF 2016

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

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COURT: Yes, defendant, please stand.

The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 680.46 grammes of a powder containing 454.13 grammes of cocaine.

According to the facts which have been admitted by the defendant, on 27 August, a parcel arrived in Hong Kong by Speedpost sent from Brazil. It was addressed to someone called Mukharo Mah, and the address was Number 50, Tai Hong Wai, Kam Tin, New Territories. A contact telephone number was also provided.

Inside the parcel, Customs officers found four plastic bottles of pill capsules, a health supplement and some teabags. Inside those pill capsules were found the quantity of cocaine which is the subject matter of the charge. On 31 August, a Speedpost notification card was put into the mailbox of the recipient address, and a control delivery operation was arranged at Kam Tin Post Office.

On 1 September last year, the defendant appeared at Kam Tin Post Office to collect the parcel. It is clear from the photographs which had been taken that the defendant went to the post office by herself to collect the parcel, and left the post office by herself. The defendant was intercepted when leaving the post office by Customs officer who revealed his identity to the defendant, and asked if the parcel she was holding was hers, and the defendant replied “yes”. At the time of interception, the defendant had a wallet, two mobile phones, and an identity card in the name of Mukharo Mah.

Upon being cautioned after her arrest, the defendant said that the parcel was a gift sent by her boyfriend Joseph in Brazil. She was only told there were clothes and shoes inside. She said she had come out from the address, that’s a Kam Tin address shown on the parcel. She claim that she did not have the key to the address, and had to wait for her friend at the market. She had her friend’s telephone number.

On board the police vehicle, she then claimed that a phone number on her mobile was a friend called Suji’s number. When the defendant was taken to the Kam Tin address, the unit could not be opened with a key found on the defendant. It was then that the defendant disclosed that the key was for another address in Jordan. The Customs officer took the defendant to that address in Jordan, and on the way, the defendant admitted that the Hong Kong ID card which she used to claim the parcel belonged to her friend, and that her real name was Fitri.

Upon arrival at the address in Jordan, as indicated by the defendant, Customs officers searched the premises and found photocopy of two pages of the defendant’s passport with her photo and particulars. When asked about the defendant’s immigration paper because the defendant is a Form 8 claimant, the defendant said she had given it to her friend at an Indonesian restaurant in Kam Tin.

The defendant, at that time, still claimed that she lived at the address in Kam Tin, which was shown on the parcel, but she had no key to the place. Customs officers subsequently located the occupant of the address, a Chinese male, Mr Tang, who said that he did not know the defendant and had been living at the address for 20 years. He said he would travel to Canada and back to Hong Kong every six to nine months, and there was no lock for the mail box for his residence, so anyone could access it. He did not know the sender of the parcel, either.

The defendant subsequently, then, was re-interviewed again, but prior to this, Customs officers also managed to locate the person called Mukharo Mah, who said she knew nothing about the parcel. She identified the ID card used by the defendant as hers, and that she knew many people called Fitri.

Now, the defendant, upon being re-interviewed under caution, then said to the Customs officers that she came to work in Hong Kong as a domestic helper. After the termination of her employment in 2014, she overstayed and successfully applied for a Form 8 recognizance, whilst awaiting the Immigration Department dealing with her application, and she had been living on welfare allowances each month.

She claimed that she met this person called Joseph in Brazil via Facebook in April 2015. She claimed that Joseph said that he would send her a parcel as a gift for her birthday in April, and was told that the parcel would contain clothes and shoes. She said in mid-August, Joseph requested a name and address for sending the parcel, and also an identity document was required for collection of the parcel. She was afraid she could not use her immigration papers to collect the parcel, so she asked this person Mukharo Mah, for her identity card, and this person, Mukharo Mah, lent it to her on 29 August.

And she claimed that the Kam Tin address belonged to her friend Santi, and claimed that Santi had told her that the recipient’s address was her home, and so on the day of her arrest, she brought along the notification card, together with the identity card of this person called Mukharo Mah to go and collect the parcel. She said that after collecting the parcel, she was intending to take it home to open it, and she told Customs officers that she suspected that the parcel would contain something illegal, like drugs or marijuana.

And the drugs are subsequently examined at the government chemist, and found to contain the amount of cocaine as charged. The street value of the dangerous drugs was HK$696,110.58.

The defendant is aged 28, and has a clear record in Hong Kong. According to Ms Lai in mitigation, she had been educated up to Form 3, she became a domestic helper, she has a son who is now 8 years old. She was deserted by her husband, and therefore she came to Hong Kong in 2013, but lost her job in 2014 because of some money matter -- moneylender’s matter which caused her to lose her job. According to Ms Lai, she then applied to the Immigration Department, and as a torture claimant, and she was given a Form 8 recognizance.

She sent a letter to the court and according to Ms Lai, the letter records her apologies, her remorse, that she was naively used by traffickers. She said, through Ms Lai, that she was promised a remuneration of US$500 upon successful completion of this delivery.

This court is grateful to Mr Melwaney for providing the relevant cases in the sentencing of cocaine, particularly also cases relevant to the enhancement of the sentence after countering the international element and also for Form 8 recognizance holders.

Now, the level of sentences is already set down in the case of Lau Tak Ming, which is the sentencing guideline for heroin. But it’s also used for sentencing in cocaine. And for trafficking between 400 grammes to 600 grammes, the recommended guideline sentence is between 15 to 20 years’ imprisonment after trial.

In this case, I cannot see any mitigating factors at all, apart from the fact that the defendant did plead guilty in the Magistrates’ Court at the first opportunity, so she is entitled to one-third off.

As I have indicated to Ms Lai, sentencing is not a mechanical exercise in drug trafficking cases. Each case has to be looked at as to the facts pertaining to the particular case, and also the defendant’s background, and the sentencing judge will then assess the proper sentence, having considered the whole of the facts in front of him or her.

In this case, although the defendant has claimed that she was naively used by the drug trafficker Joseph from Brazil, the facts reveal that, first of all, the defendant herself has used someone else’s address, someone else’s identity card, and has claimed to the Customs officers, time and time again, that she had thought that the parcel was from this friend Joseph containing clothes for her birthday.

So I indicated to Ms Lai that there were questions in my mind as to the level of her naivety in this transaction. Ms Lai, having taken further instructions, came back and said, well, the fact is that the friend of the defendant, Suji, was actually the one who had indicated to the defendant to use the Kam Tin address, and it was not the defendant who found the Kam Tin address, although she told the Customs officer it was a friend Santi’s address, in fact, it was Suji who gave her that information.

Well, despite these claims or allegations of the defendant, however, Ms Lai says the defendant knew that there were drugs in the parcel and that she would be given US$500 upon a successful delivery of these drugs, so the defendant is not an innocent, naïve person used by drug traffickers.

Now, Ms Lai correctly has indicated as per the sentencing guidelines indicated by Lau Tak Ming, that 400 grammes to 600 grammes would merit a sentence of 15 to 20 years, and so working out mathematically, it would merit a sentence of about 16 years and 4 months. However, as had been indicated by the Court of Appeal, we do not work it out mathematically. So I would say that this amount would merit a sentence of 16 to 17 years. However, because of the clear record of the defendant in Hong Kong, I would adopt a starting point of 16 years.

I have also to consider the international element, and I am grateful to Mr Melwaney for providing the case of HKSAR v Chung Ping Kun CACC 85/2014, where the Court of Appeal considered the enhancement which would considered appropriate when there is an international element involved. The Court of Appeal observed that prior to this case, there has not been any sort of recommendation for enhancement for the international element. And therefore they suggested, after reviewing the cases in the past, they suggested that as a broad guideline for drugs of this kind below 1,000 grammes, the level lf enhancement would be, up to 250 grammes would be 6 months, between 250 and 500 would be 6 months to 1 year, and between 500 to 1,000 grammes would be 1 year to 2 years.

And in this case, as I have said, the amount of cocaine is 454.13 grammes, and that would land in the 6 months to 1 year enhancement, and it is closer to 1 year because the amount is 454.13 grammes, and also the fact is, as I have said, the facts in this case reveal a more complicated participation by the defendant, as I have already said, so I would enhance for the international element, I would enhance the sentence by 1 year.

Then I have to consider also the fact that this offence was committed by a Form 8 recognizance holder such as the defendant in this case, and this has been considered before today’s case, in fact, again, I am grateful to Mr Melwaney for providing the case of HKSAR v Sandagdorj Altankhuyag and another [2014] 1 HKC 206, and I would cite here the words Macrae JA at paragraph 21, where he was considering the fact that the 2nd appellant in his case was a torture claimant holding a Form 8 recognizance, and he said:

“Where someone in the position of the 2nd appellant deliberate sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnish the city’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.”

And it was the Court of Appeal’s consideration that this is considered to be a serious aggravating feature. Subsequently, in the case of HCCC 98/2015, HKSAR v Londono and Orozco, the sentencing judge, I think it was myself, also follows Sandagdorj case and also enhanced the sentence similarly for the 2nd defendant in that case.

Now in this case, the defendant not only took advantage of the fact that she was freely allowed to move in Hong Kong and given welfare payments so she did not have to work, she indulged in drug trafficking for the easy money of US$500, without considering the consequence, the evil consequence these drugs would visit on the society of Hong Kong, so I consider therefore that an appropriate enhancement in this case for her would be 1 year.

So the total sentence would be 18 years after trial.

So having given the defendant one-third off, I would sentence her to 12 years’ imprisonment.