HKSAR v. Sunarti

DCCC 985/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 985 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. The facts are that on 6 May 2015, the defendant unlawfully trafficked in 15.5 kilogrammes of cannabis in herbal form.

2.The facts are that a parcel arrived from Nigeria by Speedpost.  The consignee of that parcel from Lagos, Nigeria, was “Yuni Kristanti” with an address in Shanghai Street, Mong Kok.  The parcel was actually examined by Customs and Excise and it was discovered that the 24 cans was stuffed with herbal cannabis.

3.There was a total of 24 packets with an estimated street value of just under HK$2 million.

4.As a result to this discovery, on 4 May the Post Office assisted the Customs and Excise Department to carry out an operation. The Post Office called the consignee on a telephone number stated on the details, and a female was told that the parcel was at Mong Kok Post Office ready to be collected. 

5.On 6 May at about 10.50 in the morning, the 1st defendant entered the Post Office to collect it.  She presented her own identity card as well as a photocopy of an identity card bearing the name of the consignee.  The Post Office handed the parcel containing the cannabis to the 1st defendant.  After she left the Post Office she was arrested. 

6.She denied knowing what was in the parcel and agreed to assist the Customs and Excise Department in carrying out a controlled delivery.  She told the Customs officers that she has asked by the 2nd defendant, Lulu, to collect the parcel from the Post Office  and would have been paid some money for it.  She was told by Lulu the parcel contained food.

7.As a result of this controlled delivery and operation, the 2nd defendant was arrested not long after.  The 2nd defendant told the Customs officers that she was asked by somebody called “Cindy” to pick up this parcel, but she had asked the 1st defendant to pick it up for her.  She told the Customs officers she thought it contained chocolate.

8.She was willing to participate in a controlled delivery to Cindy.  Despite this cooperation, the operation was not successful.  The Customs found out that the address of the consignee was fake. They also uncovered many phone messages made between mobile phones between the 1st and 2nd defendant’s mobiles.  There were messages instructing the 1st defendant, from the 2nd defendant, as to how to collect the parcel from the Post Office.

9.Between the 2nd defendant and someone called “Big Boss”, or Cindy, between their mobiles there were messages.  The Big Boss has asked the 2nd defendant to pick it up, but the 2nd defendant told him or her that she had arranged the 1st defendant to do it.  She also says that she was unable to sleep the night before which made her think twice about (I can only guess) participating in this operation.  The Big Boss asked her if she dared to do it or not.  The 2nd defendant was told to take it home and that she would be met there to collect the parcel.

10.The 2nd defendant pleaded guilty before trial. The prosecution offered no evidence against the 1st defendant. 

11.The 2nd defendant has a criminal record in Hong Kong, those include two immigration offences.  In 2002 she was sentenced to a total of 4 months’ imprisonment for breaching the condition of her stay here in Hong Kong.  She has no other criminal convictions.

12.Mr Tracy on her behalf has submitted written mitigation marked “MFI1” with useful and pertinent authorities.  Paragraph 1 of the mitigation, Mr Tracy sets out in full the defendant’s background.  The defendant is now 37 years old and from Indonesia. She is single mother of a 14-year-old child and I presume lives on her grandparents’ farm. 

13.The defendant has worked as a domestic helper almost all her life since leaving school.  She started in Jakarta before going Penang, Malaysia, when she was 21 years old.  When she was 22 she married her Indonesian husband.  However, he turned out to be a violent man and she left him. 

14.In 2001, her daughter was born.  In 2002, the defendant went to Singapore to work as a domestic helper for just under 3 years.  In 2006, she left Indonesia again to come to Hong Kong to work as domestic helper.  She had several employers in a short period of time and was not happily employed in any of those contracts.  In mid-2007 she returned to Indonesia due to ill‑health.  Not long after in 2008, she came back to Hong Kong.  However, that contract did not work out and for various reasons she did not leave Hong Kong when the contract was terminated and overstayed.  Eventually she was arrested for overstaying in Hong Kong and, as I have said, sentenced to 4 months’ imprisonment.

15.Whilst in prison she applied for asylum as a torture claimant.  Her application is yet to be heard.  As a result of her application, she can stay in Hong Kong and from the International Social Services receives rent, allowance and food.  She explains that Cindy, or Big Boss, asked her to take part in the drug-trafficking activity and she agreed. She is now deeply remorseful for committing this offence. 

16.Her best mitigation is her plea of guilty.  She would obviously be entitled to a discount of one-third for that plea.  However, Mr Tracy has convinced the court that she is entitled to an additional discount for agreeing to participate in a controlled delivery after her arrest, and despite it not being successful she should still be entitled to a further discount.  There is no reason to doubt her attempt to help was not genuine.

17.Mr Tracy refers to three authorities set out in paragraph 3.6 of MFI1 which, in short, agrees that an additional discount should be applicable, up to 40 per cent instead of the normal one-third discount, and I agree with this aspect of mitigation.

18.The fact the defendant is a Form 8 Recognizance holder in Hong Kong, and in Hong Kong as a guest so-to-speak of the Hong Kong Government and committing a serious offence in this manner, can attract a higher starting point.  It can be considered an aggravating factor that she has abused the hospitality of the Hong Kong society by committing such a serious offence. 

19.However, in this case, after having heard mitigation, on this occasion I will not increase the starting point for this factor.  The defendant is pre-warned that this could happen in the future.

20.However, I do find there is another aggravating factor that I will not ignore.  I find there is an international element to this case.  The 15 grammes of cannabis were sent to Hong Kong by Speedpost from Nigeria.  It was to be collected from the Post Office by the 2nd defendant.  The 2nd defendant then arranged the 1st defendant to collect it.  For whatever her reasons in doing that, she is still a cog in the wheel of the drug-trafficking activity here.  She knew that drugs were in the parcel and she directly arranged collection of it from the Post Office.  I disagree with Mr Tracy’s submission that there is no international element in this case. 

21.In coming to a starting point, I have considered the authority of AG v Tuen Tsui Ming [1995] 2 HKC 798.  The Court of Appeal gives guidelines for trafficking in cannabis resin.  The Court of Appeal is of the view that where over 9,000 grammes are trafficked, the court should consider 4 years and upwards.  That same authority also makes it very clear that cannabis, in its herbal form, is less potent than cannabis resin. Therefore, the starting point should be adjusted downwards.  It can be adjusted downwards by up to a year but should still be within the range dictated by the starting point indicated in the tariffs.

22.I have had sight of several authorities involving sentencing of herbal cannabis.  In the authority of HKSAR v Kwang Sau Fan & Anor [2002] 4 HKC 184 where 9.663 kilogrammes of herbal cannabis was sent by Speedpost from China to Hong Kong, the Court of Appeal upheld a starting point of 4 years’ imprisonment.

23.In the authority of Secretary for Justice v Lee Siu Kei [2006] 1 HKC 499, there the herbal cannabis weighed 13.02 kilogrammes.  The Court of Appeal was of the view that a starting point 5 years would have been appropriate, but that defendant can be distinguished from this defendant.  That defendant in that authority committed the trafficking offence whilst on bail for another offence.  He had previous similar convictions and was involved in triad societies.

24.The last authority I took into account was HKSAR v Touray Edrisa & Ors CACC 124/2010. There, trafficking in 30.2 kilogrammes of herbal cannabis attracted a starting point of 6 years’ imprisonment upheld by the Court of Appeal.

25.I take into account your plea, your background, and in fact you have a criminal record but they are immigration offences.  I take into account the cooperation you gave to the Customs and Excise officers when you were arrested.  I also take into account the quantity of herbal cannabis here.  Fifteen kilogrammes was worth just under $2 million.  That is a large amount of cannabis.

26.I will also obviously take into account tariff guidelines, as well as those authorities I have just referred to.  The authority of Lee Siu Kei is the closest in weight to this case, and in that case the Court of Appeal said 5 years would have been appropriate.  But I will, as I have said, distinguish you, this defendant, from the defendant in that authority even though this case involves another 2 kilogrammes of cannabis.

27.Having considered all those factors I find relevant, I will take a 4-year starting point for this quantity of drugs, but I intend to add 6 months to that starting point to reflect the aggravating factor of an international element that I find exists.  Therefore, the starting point is one of 4 years and 6 months.

28.I will reduce that starting point by 40 per cent to reflect the cooperation given.  That would be a reduction of 22 months. 

29.Therefore, for this charge you are sentenced to a 2 year and 8 month term of imprisonment.