HKSAR v. Nur Mei Lina

HCCC 77/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 77 OF 2017

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

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COURT:

The defendant pleaded guilty before a magistrate to one charge of attempting to traffic in a dangerous drug and one charge of trafficking in a dangerous drug and for these two offences was committed to the Court of First Instance of the High Court for sentence.

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 involved, background of the defendant and mitigation put forward on her behalf.

The facts of the case may be summarised as follows. Cocaine, which is the subject of Charge 1, was delivered as a parcel of candles from Brazil to the address of the defendant. When it was discovered that pellets of cocaine were concealed in each of the 17 candles inside the parcel, a controlled delivery was made to the address as shown on the air waybill. The defendant, who was the tenant of the flat, answered the door and confirmed her name was the same as the consignee of the parcel. As soon as she did so, she was arrested. Under caution, she said she had no idea what the pellets taken out from the parcel by the officer were and she did not know who sent her the parcel.

A search was then carried out in the flat and more cocaine, which is the subject matter of Charge 2, was found inside a drawer of a cabinet. Under caution, the defendant said it belongs to her friend and she did not know what it was. In a subsequent interview, she maintained her denial.

I was told that the defendant is an Indonesian female, now 32 years of age. She has been staying in Hong Kong under recognisance as she has filed a torture claim. She is single and has received secondary education. In December 2011, she came to Hong Kong to work as a domestic helper. Her employment contract was prematurely terminated within a few days. While she was required to leave Hong Kong within two weeks, she overstayed. A removal order was issued against her after she had been arrested in March 2013.

The defendant is not a first-time offender but her previous convictions were all related to immigration offences. In 2013, she was convicted of breach of condition of stay and a suspended sentence was imposed. In 2014, she was convicted of taking employment while being a person in respect of whom a removal order is in force. She committed this offence in breach of the suspended sentence. As a result, the suspended sentence was activated and a total of about 13 months’ imprisonment was imposed.

In mitigation, learned counsel for the defence, Miss Lee, stressed that the defendant is remorseful and she had pleaded guilty at the earliest opportunity. Miss Lee told the court that the defendant came from a poor family in Indonesia and was the main breadwinner of the family. She committed the offence out of stupidity. She was only helping a friend without any reward. Miss Lee asked for a lenient sentence for the defendant and stressed that this is the first dangerous drug-related offence the defendant had committed.

The drug involved in the case was cocaine. The subject matter of Charge 1 is 969.3 grammes of a powder containing 717.6 grammes of cocaine. The subject matter of Charge 2 is 965 grammes of a powder containing 556 grammes of cocaine.

The Court of Appeal held in AG v Chang Chen Li Sa [1995] 1 HKCLR 69 that in a case of trafficking in cocaine, the guideline in Lau Tak Ming [1990] HKLR 370 is applicable since the narcotic content of the two drugs are very closely alike in the degree of harm. In Lau Tak Ming, a sentence of 15 to 20 years was suggested for a case of trafficking in heroin if the narcotic content was 400 to 600 grammes, and a sentence of more than 20 years’ imprisonment was suggested for a case involving narcotic content over 600 grammes.

In a subsequent case of HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal held that a sentence of 20 to 23 years should be considered if the narcotic content of the heroin trafficked in was 600 to 1,200 grammes and a sentence of 23 to 26 years’ imprisonment should be considered if the narcotic involved was 1,200 to 4,000 grammes.

The offence is Charge 1 is attempting to traffic in a dangerous drug. Although the offence is one of attempting, it is so only because the defendant was arrested before the dangerous drug had actually come into her physical possession. I do not see a sentence lighter than the tariff to be justified in the circumstances. Having regard to the quantity of the drugs. I adopt an initial starting point of 20½ years for Charge 1 and 18½ years for Charge 2.

There were aggravating features. The first such feature was the international element. The other feature was that the defendant committed the offences during her stay in Hong Kong on the basis of her torture claim. This being an aggravating feature was established in cases such as HKSAR v Shah Syed Arif, CACC 298/2015.

For the former aggravating factor, the starting point should be enhanced by 9 months. Further enhancement is required for the second aggravating feature but bearing in mind the risk of excessive enhancement, in my judgment, the starting point for Charge 1 should be enhanced by 15 months in total. The sentence for Charge 2 should be enhanced by 9 months for the latter aggravating factor. In all the circumstances, I adopt the following starting points: Charge 1, 21 years and 9 months; Charge 2, 19 years and 3 months.

The defendant pleaded guilty and for this she is entitled to the one-third discount. Having considered to the whole circumstances including what learned counsel said on behalf of the defendant, in my judgment, this is the extent of discount the defendant is entitled to in this case.

For the above said reasons, I sentence you to 14½ years’ imprisonment for Charge 1 and 12 years and 10 months’ imprisonment for Charge 2.

The Court of Appeal observed in HKSAR v Touray Edrisa, CACC 124/2010, that in cases of multiple unlawful trafficking in dangerous drugs that are connected closely in time and fact, it is appropriate for the sentencing court to have regard to the overall quantity of the narcotic. The total quantity of cocaine was 1,273.6 grammes. For this quantity, a starting point of 23 years is appropriate. For the aggravating features, in my judgment, the starting point should be enhanced by 9 months, making an ultimate overall starting point of 23 years and 9 months.

You are entitled to a one-third discount from this ultimate overall starting point. As a result, you are to serve a total sentence of 15 years and 10 months. To achieve this, I order 1 year and 4 months of the sentence imposed on Charge 2 to run consecutively to that imposed on Charge 1.

So all in all, you are to serve a total immediate imprisonment term of 15 years and 10 months.