HKSAR v. Fitri

CACC 265/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 265 OF 2016

(ON APPEAL FROM HCCC NO 266 OF 2016)

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BETWEEN

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Before:  Hon Macrae JA and McWalters JA in Court

Date of Hearing:  29 March 2017

Date of Judgment: 5 April 2017

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.The applicant pleaded guilty before a magistrate to a charge of unlawfully trafficking in 680.46 grammes of a powder containing 454.13 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, as a result of which she was committed to the High Court for sentence. On 1 August 2016, the applicant was sentenced by Toh J (“the judge”) to a term of 12 years’ imprisonment. On 19 August 2016, the applicant filed notice of her intention to apply for leave to appeal against sentence.

The facts

2.At about 10:45 am on 27 August 2015, Customs & Excise Officers intercepted a Speedpost parcel which had been sent from Brazil to a person called Mukharo Mah at an address at No 50 Tai Hong Wai, Kam Tin, New Territories (“the Kam Tin address”).  Upon examination, the parcel was found to contain cocaine, the subject matter of the charge.  The total value of the drug at the time was HK$696,110.58.

3.On 31 August 2015, a Customs Officer delivered a Speedpost Notification Card to the mailbox at the Kam Tin address, posing as a postal officer.  Customs Officers then mounted a controlled delivery operation at Kam Tin Post Office (“the Post Office”).

4.One day later, on the afternoon of 1 September 2015, the applicant, who is an Indonesian national and a Form 8 recognizance holder[1], appeared at the Post Office where she presented the Speedpost Notification Card to a postal officer, together with a Hong Kong Identity Card (“HKIC”) in the name of Mukharo Mah, in order to collect the parcel.  Upon signing a receipt for the parcel, it was handed over to the applicant.  She was subsequently intercepted outside the Post Office by Customs Officers.  CCTV footage had captured the course of events inside the Post Office.

5.The applicant was at the time of her interception holding a wallet, two mobile telephones and the HKIC in the name of Mukharo Mah.  Upon arrest and caution, the applicant said, inter alia, that the parcel was a gift sent by her boyfriend Joseph in Brazil, and contained what she was told were clothes and shoes.

6.At the time of arrest, the applicant did not have her Form 8 recognizance with her.  Customs Officers were accordingly led by her to conduct a search of the Kam Tin address and a further address in Jordan in order to locate her recognizance form, but in vain.

7.In the meantime, the Immigration Department confirmed that the applicant and Mukharo Mah were both Form 8 recognizance holders; and further enquiries established that the latter claimed to know nothing about the parcel.

8.In the afternoon of 2 September 2015, a video-recorded interview was conducted by Customs Officers with the applicant, in which she stated, inter alia, that:

(a) She came to know Joseph on “Facebook” in April 2015 but had never actually met him, nor did she know his nationality;

(b) Joseph told her in July that he would send her a parcel as a birthday gift (the applicant’s birthday is in fact in April);

(c) She thought that her Form 8 recognizance would not be sufficient to redeem the parcel, so asked Mukharo Mah for her HKIC on 23 August 2015;

(d) Mukharo Mah lent the applicant her HKIC on 29 August 2015, yet knew nothing about the parcel;

(e) She had never received, nor been asked to receive, any parcel before;

(f) She suspected the parcel would contain something illegal, like drugs or marijuana, but denied knowledge of the actual drugs found.

9.The applicant by her admission of the Summary of Facts specifically accepted that she was trafficking in the dangerous drugs as particularised in the charge.

Mitigation

10.The applicant was 28 years of age and had a clear record at the time of sentence.  She claimed she had been deserted by her husband leaving her solely responsible for their 8-year-old son.

11.It was submitted by counsel that the applicant was enticed into committing the present offence for a reward of US$500, which she was not paid since the delivery failed.  It was also said that Joseph was the mastermind who had recruited a lady called Suji (or Santi) to provide the applicant with the Kam Tin address and arrange for her to collect the parcel. Counsel specifically conceded on the applicant’s behalf that she knew from the outset that the parcel would contain dangerous drugs.

12.Regarding the international element involved in facilitating the importation of the dangerous drugs into Hong Kong, counsel urged the court to adopt an enhancement of sentence at the lower end of the range of 6 to 12 months’ imprisonment, given the applicant’s plea of guilty and remorse.

Reasons for Sentence

13.The judge referred to the appropriate guidelines under R v Lau Tak Ming[2], which were equally applicable to cocaine as they were to heroin narcotic, noting that the appropriate starting point for trafficking in 400 to 600 grammes of cocaine was in the range of 15 to 20 years’ imprisonment.

14.The judge adopted a starting point of 16 years’ imprisonment for the quantity concerned and enhanced it by 2 years’ imprisonment – 1 year for each of the following aggravating factors:

(a) The international element involved in facilitating the importation of dangerous drugs into Hong Kong; and

(b) The commission of the offence by a torture claimant who was a Form 8 recognizance holder.

15.The judge then reduced the resulting notional sentence of 18 years’ imprisonment after trial by one third to reflect the applicant’s guilty plea tendered at the first available opportunity, thus resulting in the sentence of 12 years’ imprisonment.

Grounds of appeal against sentence

16.In her Form XI, the applicant asserted that her sentence was too long, claiming that other offenders who had trafficked in greater quantities of “illegal drugs” did not have longer sentences that hers. She also pleaded to be released from prison earlier in order to take care of her young son and mother.

17.The applicant further filed a letter with the court, dated 5 December 2016, in which she pleaded for this court to consider her family circumstances, most of which had been articulated by her counsel in the course of mitigation.

18.By way of a Notice of Motion dated 16 March 2017, the applicant sought to adduce as new evidence the birth certificate of her son, her family registration card, and an online newspaper article dated 21 October 2016 given to her by Father John Wotherspoon, who is well known to these courts. The article stated that a Filipina by the name of Eleanor Amorin had acknowledged receipt of a parcel containing a dangerous drug from her boyfriend in Brazil, for which she was arrested and charged.  It transpired that, on her subsequent appearance at Tsuen Wan Magistracy, the prosecution dropped the charge against her “without giving any reason”.

19.In her oral remarks before us, the applicant sought at one point to suggest that she did not mean to plead guilty to the charge and asked if Father Wotherspoon, who was present in court, might address us on his behalf.  In the unusual circumstances of her challenge to her original plea, she being unrepresented before us, we permitted Father Wotherspoon to address us.

20.He raised with us his concern that there is a growing trend of “innocent” people, mainly women, being tricked by a circle of unscrupulous foreigners in Hong Kong into receiving parcels sent from abroad. These people are, like the applicant, being preyed upon over the Internet and led into crimes they would never otherwise commit, without realising what they are doing.  He urged that the Director of Legal Aid group these cases together for the courts so that the courts could see “the big picture” of what is really going on.

Respondent’s submissions

21.Ms Rosa Lo, on behalf of the respondent, submitted that the starting point for trafficking in 454.13 grammes of cocaine, if calculated on a purely arithmetical approach in relation to the relevant guidelines, would have been 16 years and 4 months’ imprisonment, namely 4 months longer than the starting point in fact adopted by the judge.

22.She further submitted that family circumstances or hardship could not amount to mitigation given the seriousness of an offence involving the international trafficking of dangerous drugs into Hong Kong: see HKSAR v Anyalechi[3]. Ms Lo took no issue with the application to adduce fresh evidence.

23.As for the Eleanor Amorin case, Ms Lo produced the Brief Facts of the charge.  She argued that Eleanor Amorin’s situation was rather different.  In that case, all that she had done was answer the door to receive a parcel, knowing that a gift was being sent to her by a friend she had made on “Facebook”.  However, both her name and the address on the parcel were correct and during interview, she had denied any knowledge of the presence of dangerous drugs inside the parcel, nor was she being paid anything by anybody. In the case before us, not only had the applicant admitted that she suspected the parcel might contain dangerous drugs, but she had also been warned by Mukharo Mah that it was “dangerous” to use her HKIC.  Nevertheless, she still went ahead to collect the parcel for a reward of US$500.

Consideration

24.There can be no complaint about the initial starting point of 16 years’ imprisonment.  It was, as Ms Lo has submitted, lower than a strictly arithmetical starting point derived from the relevant band in the guidelines might have been.  Nor do we think there can be any complaint about the enhancement of 1 year’s imprisonment for the international element involved in facilitating the importation into Hong Kong of almost half a kilogramme of cocaine narcotic worth almost HK$700,000.  This enhancement was again within the appropriate range of enhancement envisaged in HKSAR v Chung Ping Kun[4].

25.The applicant was a torture claimant in receipt of a Form 8 recognizance, which permits her to remain at liberty on the streets of Hong Kong receiving welfare assistance, whilst her claim is being considered.  Yet, she breached the trust of the people of Hong Kong by playing her part in the importation into this territory of a very large and valuable consignment of cocaine with all the social consequences for families and communities associated with its trafficking.  As this court has recently reiterated in HKSAR v Shah Syed Arif [5], at para 32:

“It seems to us undeniable that the trafficking of cocaine by people who are not normally entitled to be in Hong Kong but are licensed to remain at liberty in the community while their various claims for asylum are being processed, not only affects the community at large but has an obvious and significant impact on the reputation of this city. The Judge was plainly right to regard the applicant’s offence as a serious breach of the trust and privilege extended to him by the people of Hong Kong.”

The judge was plainly correct to enhance her starting point for this aggravating factor, and the amount by which she enhanced it, namely 1 year, cannot be criticised.

26.In respect of the applicant’s complaint that other defendants have received the same sentence for larger quantities of cocaine, no particulars have been given.  However, even if the assertion were correct, this Court looks at the sentence passed in the particular case, given the particular facts and mitigation advanced, to see whether it is manifestly excessive or wrong in principle by reference to the guidelines which apply to the starting point adopted.  As explained by the court in HKSAR v Nwadiuto Samuel Joseph[6]:

“The correct approach, as Ms Chan has submitted by reference to the cases quoted in paragraphs 33 and 34 of this judgment, is to focus on the applicant’s own sentence and to examine that sentence, the route by which it was reached and the reasons that underlie it in order to determine whether the judge who sentenced him has fallen into appealable error. In the absence of appealable error, all the applicant can show is that another offender in a wholly unrelated case has been treated more leniently than he. This may well be a source of grievance to the applicant, and understandable grievance at that, but it is not enough reason for this court to interfere.”

27.As for the applicant’s domestic circumstances and her understandable desire to be with, and provide for, her son and mother, the applicant chose to come to Hong Kong and remain here notwithstanding those difficulties.  In any event, as this court has again said in HKSAR v Anyalechi[7], at para 17:

“As for the applicant’s family circumstances, they cannot amount to any mitigation of an otherwise proper sentence for an offence of such gravity. Such circumstances are by no means unique to the applicant. However, personal circumstances cannot deflect the courts from applying the law firmly and consistently where such serious offences of international drug trafficking are concerned.”

28.In respect of Father Wotherspoon’s remarks, the authorities and the courts would obviously be concerned by a growing trend of people being unwittingly used by drug traffickers to receive parcels from others, whose acquaintance they have only made on the Internet.  However, there is nothing we have seen which causes us to believe that this applicant might fall into this category.  Her admissions to Customs Officers in interview and her use of someone’s else HKIC, having been warned by that person of the dangers of doing so, belie such a possibility.

29.Furthermore, the applicant had clearly signalled her wish to plead guilty to the charge before her committal date in the Magistrates’ Court, as a result of which a full Summary of Facts was prepared by a Senior Public Prosecutor to enable her to enter a plea at committal.  She duly pleaded guilty on 3 June 2016 before a magistrate, whilst legally represented, to a Summary of Facts which included, as we have said, a statement to the effect that she “now admits and accepts that at all material times she had trafficked in the dangerous drugs particularised in the charge in Hong Kong”.  As a result of her plea of guilty, she was committed for sentence to the High Court.

30.When she duly appeared before the judge in the High Court for sentence, again represented, the applicant confirmed her plea and the correctness of the same Summary of Facts drafted by the Senior Public Prosecutor.  Furthermore, not only did her counsel concede in mitigation that the applicant knew from the outset that the parcel contained dangerous drugs, but the applicant wrote a letter to the court, in advance of sentence, in which she apologised for her “misconduct” and affirmed that it would be the first and last time she committed “such a hideous crime”.

31.All of this is not to gainsay the applicant’s claim that she was inveigled into committing the offence by others.  She may well have been.  However, we see no basis for holding that her plea of guilty was equivocal, or that she did not intend to plead guilty, knowing what she had done.

32.The application for leave to appeal against sentence must be refused.

Ms Rosa Lo SPP, of the Department of Justice, for the Respondent

The Application appeared in person

[1] As set out in Schedule 1 to the Immigration Regulations, Cap 115.

[2] R v Lau Tak Ming & Others [1990] 2 HKLR 370.

[3] [2016] 2 HKLRD 20.

[4] [2014] 6 HKC 106.

[5] [2016] 4 HKLRD 664, at 674.

[6] (unrep., CACC 210/2016, 16 February 2017).

[7] [2016] 2 HKLRD 20, at 25.