COURT: The defendant, Samani Thandi Memory, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The Summary of Facts
On 21 February 2016, the defendant arrived in Hong Kong from Johannesburg, South Africa. She was intercepted for customs clearance at the arrival hall of Hong Kong International Airport. X-ray showed suspicious items inside a hand-carry briefcase she was carrying. Nothing illegal was found upon search. Due to the unusual heavy weight even when the briefcase is emptied, the inside compartment was cut open and two packets containing what was later confirmed to be 1,482 grammes of a solid containing 910 grammes of cocaine with an estimated street value of almost HK$1.6 million was found.
The defendant was arrested and under caution, she claimed she had bought the briefcase in a market in South Africa. From the belongings of the defendant, customs officers found cash and an itinerary showing that the defendant was scheduled to stay in a hotel until 26 February 2016.
In a video-recorded interview conducted later, the defendant said, under caution, that she ran a small business in South Africa selling beer, sweets and cigarettes with a monthly income of about 6,000 rand which is roughly about HK$3,150. On her way to the airport, the taxi dropped her off at a market and a male approached her to sell her a laptop with the briefcase for 550 rand as he was just robbed and needed money. As her own bag was broken, she purchased the briefcase from that man and then took another taxi to the airport. The briefcase she bought was the one taken away by the authorities. She intended to bring the briefcase back to South Africa. She had no plan to meet anyone in Hong Kong and she came alone.
Before the magistrate, the defendant admitted she knowingly brought the cocaine seized into Hong Kong and she possessed the same for the purpose of unlawful trafficking.
Background and mitigation
The defendant is a 24-year-old woman from South Africa. She has a clear record. She has two young children with her boyfriend and she used to run a shop selling food and drinks.
The defendant was originally represented by Mr John Dunn of counsel, however, since this case was adjourned on a number of occasions, Mr Dunn no longer represented the defendant, upon his retirement. The defendant is now represented by Mr John Marray of counsel.
In earlier mitigation, Mr Dunn submitted to me how the defendant came to commit the present offence. According to the defendant, her maternal aunt, Primrose, had come to Hong Kong to buy telephones for sale in South Africa. Primrose persuaded the defendant to come to Hong Kong to do the same with ticket and accommodation provided. Before the defendant left for Hong Kong, Primrose gave her a laptop with a bag, insisting she must bring them to Hong Kong. The defendant looked at the bag and realised she was being used to smuggle drugs to Hong Kong. She did not object and Primrose told her someone would meet her in Hong Kong. The defendant was arrested when she arrived in Hong Kong.
While she was in custody, she met Father Wotherspoon who is well known for running campaigns involving prisoners in Hong Kong to stop drug couriers from third world countries from being used to bring dangerous drugs to Hong Kong. The defendant told Father Wotherspoon her story and Father Wotherspoon encouraged her to get her family to help stop her aunt Primrose from recruiting other traffickers. The defendant did what Father Wotherspoon suggested. The defendant’s family gave information about the activities of Primrose.
Counsel then said that as a result of the information given, Primrose was caught at the airport in Johannesburg in April 2016, when she returned from Dubai with 77 pellets of heroin concealed in her luggage. Primrose was arrested and charged with dealing in dangerous drug. She was allowed bail on rand 2,000 and eventually sentenced to 3 years’ correctional supervision with conditions by the court.
I have seen documents relating to Primrose’s arrest and sentence. That was no confirmation from the authorities in South Africa that the arrest was due to information provided by the defendant’s mother.
I understand Father Wotherspoon went to South Africa in January this year and he met with the defendant’s mother and sister. Father Wotherspoon was instrumental in connecting the defendant’s family with those in the South African broadcasting company running a show in South Africa called “Special Assignment” which is similar to the programme “60 Minutes Plus”. The defendant’s mother and sister agreed to take part in a ‘sting’.
In an episode called “The Last Run” which dealt with the problems of South Africans being used as drug mules and the hardships faced by those serving prison sentences overseas, the case of the defendant was featured. Primrose was interviewed, secretly filmed by a hidden camera. Primrose admitted that the defendant was sent to Hong Kong with dangerous drug but claimed it was her boss who had sent the defendant. She also admitted that since her passport had been confiscated, she could not go herself but she continued to send other young girls to bring dangerous drugs overseas.
Father Wotherspoon informed me that there was a good amount of publicity generated from this episode. He had also uploaded the link of this episode onto his website in different countries and there were many “hits”. Father Wotherspoon was of the view that such publicity would do immense good in the fight to stop drug mules bringing dangerous drugs to Hong Kong.
The defendant wrote to me herself, expressing deep regret. Several members of her community also wrote to me, describing what a decent and good person the defendant was.
The assistance rendered, the defence submission
Mr Dunn submitted that the defendant is truly remorseful and had pleaded guilty at the earliest opportunity. She also assisted the authorities by informing her family on her aunt, Primrose, resulting in Primrose’s arrest. Mr Dunn referred me to the authority of Z v HKSAR [2007] 2 HKC 265 in which the Chief Justice remarked that, at page 270:
“The policy of the courts to recognise useful assistance to authorities in mitigation of sentence is based on the public interest... On Criminals should be encouraged to inform on other criminals. Honour among thieves should be discouraged... On The court has therefore adopted the policy of accepting useful assistance as a mitigating factor.”
Mr Dunn next drew my attention to the case of The Queen v Sivan [1988] 87 Cr App R 407 where the court listed out factors to be considered by the sentencing judge when deciding on the discount to be given for the assistance, including the seriousness or otherwise of the offence, whether the information led to the success of bringing the criminal to justice, the degree of assistance and the risk faced by the defendant or his family.
Mr Dunn also referred me to cases such as The Queen v Raquel Garcia [1990] 1 HKLR 599 and Secretary for Justice v Solomon Dominic Musa, CAAR 11/1999 (unreported), and submitted that in recognition of the principle of comity of nations, the fact that the defendant’s assistance resulted in the arrest of her aunt in South Africa and played a part in stopping her aunt from either bringing dangerous drug herself or luring other people to bring the dangerous drug to Hong Kong should be recognised as useful assistance to the authorities.
Mr Dunn asked me to be as lenient as possible in adopting the starting point and to give the defendant a discount on a par as someone who had provided information resulting in the arrest of a criminal without having gone into the witness-box to give evidence.
After Mr Dunn’s retirement, when Mr Marray has taken over the case, he submitted an affirmation of the defendant’s mother relating to the information she had given to the authorities about her own sister, Primrose. Mr Marray also referred me to two other authorities, that is HKSAR v Liang Bing Zhao [1997] 3 HKC 20 and HKSAR v Sae Heng Niramon, CACC 423/2012 (unreported), in support of his submission that a further discount should be given to the defendant for the assistance she had given. On the authorities, Mr Marray submitted that the overall discount, that is including the plea, should be 40 per cent.
Stance of the prosecution on the defendant’s assistance
Mr Gary Leung, for the prosecution, also referred me to the case of Z. Apart from that, he referred me to a New South Wales case in relation to the provision of assistance to foreign authorities. That is the case of The Queen v Sukkar [2006] 172 A Crim R 151. In short, the prosecution submits that this court is entitled to assess the assistance allegedly provided to the South African authorities by the defendant. The prosecution takes issue on the value, if any, of the alleged assistance.
Apart from pointing out that most of the information regarding the arrest of the defendant’s aunt as a result of information given by the defendant to her mother are hearsay, at best, Mr Leung also pointed out that even after the defendant’s aunt was arrested and sentenced, she was still recruiting other girls to traffic dangerous drugs to other countries. So her arrest did not have any effect of stopping traffickers from coming to Hong Kong.
The prosecution further submitted that assuming the court is satisfied that assistance was indeed given, a usual discount of 40 per cent would normally be given. However, this court should bear in mind the risk of safety is less significant in the case of the defendant when she provided assistance against someone overseas. If the court is not satisfied as to the usefulness, the court can treat the defendant as someone with positive good character and give her credit.
Mr Leung has since written to authorities in South Africa, attempting to get confirmation about information given by the defendant’s mother, noting however that, usually, identities of informers are closely guarded. As of today, Mr Leung had not received any reply from the authorities apart from an acknowledgement of his previous letter.
The sentence
Trafficking in a dangerous drug is a serious offence. Upon conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. The total quantity involved here is 910 grammes. According to the guidelines in HKSAR v Abdallah [2009] 2 HKLRD 437, trafficking between 600 grammes and 1,200 grammes of cocaine, the appropriate starting point is between 20 to 23 years.
Having considered the circumstances of this case, I am of the view that a starting point of 21 years is appropriate.
It is clear from the evidence that there was an international operation to bring the dangerous drugs into Hong Kong, so there should be an enhancement. See the cases of HKSAR v Hong Chang Chi [2002] 1 HKLRD 486 and the case of Abdallah that I have cited earlier.
In the case HKSAR v Chung Ping Kun, CACC 85/2014 (unreported), the Court of Appeal suggested the following broad guidelines of enhancement. Up to 250 grammes, 6 months. Between 250 and 500 grammes, 6 months to 1 year. Between 500 to 1,000 grammes, 1 year to 2 years.
I am of the view that there should be an enhancement of 21 months.
The enhanced starting point is therefore 22 years and 9 months’ imprisonment.
The defendant had tendered a timely plea and I will give her a full one-third discount. After discount, the sentence is one of 15 years and 2 months.
As indicated by the Court of Appeal in the case of HKSAR v Odira Sharon Lensa, CACC 56/2016 (unreported), I too applaud Father Wotherspoon’s efforts in disseminating information on Hong Kong’s drug trafficking laws. Measures such as his that inform and discourage those in third world countries who are vulnerable to exploitation by the international drug trafficking syndicates are of great benefit to Hong Kong. Those who participate in such measures are likewise acting in the interest and for the benefit of Hong Kong.
I accept it was the defendant’s participation in Father Wotherspoon’s campaign in passing the information about her aunt to her family, together with the participation of the family when Father Wotherspoon elicited their help and coordinated with the TV station that resulted in the story of the defendant being featured in the show in South Africa. I also accept that there was a latent risk for the defendant’s family when they took part in the “sting”. Fortunately, so far, the defendant’s family had not received any threats.
Coming back to the programme, that is the episode that I have watched, it is indeed astonishing to learn from Primrose’s own mouth that she had continued to send young girls as drug mules when she herself could not do it after her passport had been confiscated. With the assistance of the defendant’s family and Father Wotherspoon’s effort, Primrose’s admission would have been seen by many and the publicity generated would have acted as some form of warning and/or deterrent to those who are tempted or about to be tempted to act as drug mules.
I am satisfied that the defendant’s mother did provide the information about her own sister, Primrose, to the South African authorities, even though it cannot be positively ascertained that such information resulted in Primrose’s arrest. I am satisfied that the effort of the defendant and that of her family would have assisted in stopping at least some would-be traffickers coming to Hong Kong. The defendant has therefore acted in the interest of and is of the benefit to Hong Kong.
I will treat the defendant on a par as someone who had given valuable information resulting in the arrest of someone involved in serious crime but did not give evidence in court. I think a total discount of around 40 per cent, that is inclusive of the usual one-third discount, is appropriate here.
So the actual sentence for the offence of trafficking in a dangerous drug, the defendant is sentenced to 13 years and 6 months’ imprisonment.