HKSAR v. Shirley Masigla Chua and Others

HCCC 304/2016

[2018] HKCFI 2162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 304 OF 2016

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

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COURT:

Shirley Chua you were found guilty after trial by jury of one count of trafficking in dangerous drugs contrary to S 41A and 3 of the Dangerous Drugs Ordinance Cap 134.

Remelyn Roque and Ana Creus, you two were found guilty after trial by jury, of one count of conspiracy to traffic in dangerous drugs contrary sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134 and sections 159A and C of the Crimes Ordinance Cap 200.

It was the prosecution case that all three of you, along with D2, imported cocaine from the Philippines to Hong Kong. Those drugs were professionally concealed within almost identical bags, two of which were seized from D1 and D2 and photos of all four were within the evidence.

You individually sought to clear those bags through Customs green channel at Chek Lap Kok International Airport on 25 September 2015. You, Miss Chua were intercepted along with D2 and got no further. You, Miss Roque and Miss Creus were able to pass through Customs and proceeded to Chung King Mansions where you, Miss Creus handed over the drugs that the two of you had successfully imported.

That is the case in a nutshell but, in fact, there is much more to it than that and it is to the background facts that I have looked when considering the appropriate sentence, for I take the view that the verdict of the jury, tells a tale in itself as to your individual culpability.

Originally, there were four of you who stood trial in this matter. All four of you faced one count of Conspiracy to traffic in dangerous drugs. The prosecution's case was that you conspired together and with other persons to import approximately 4 kilograms of cocaine into Hong Kong.

The figure of 4 kilograms represented the notional total of that which you individually imported and which the prosecution suggested was approximately 1 kilogram each. That was based on the narcotic content of the drugs recovered from Miss Chua who was D1 which was 944 grams of cocaine and 923 grams of cocaine was recovered from Miss Thomas, who was D2 in trial.

D1 and D2 were also charged individually, in the alternative, with a substantive count of Trafficking in dangerous drugs, as they had both been apprehended at the airport, while Miss Roque, D3 and Miss Creus, D4 had not. D2 was ultimately acquitted of both charges.

The court has reminded itself that the quantity of drugs is relevant for sentencing purposes only, as the charge was one of conspiracy, that is, agreeing to import cocaine and not agreeing to import a particular amount, although, of course, the prosecution's case from the outset clearly was an agreement to import 4 kilograms.

Given that you all imported the dangerous drugs in the same manner and at the same time, and that D1 and D2 were stopped whilst D3 and D4 managed to continue their criminal enterprise and see it through to the end, the question arises as to why the jury acquitted D2 and convicted D1 of the substantive count and not of the conspiracy and whether that should have any effect upon the sentence which I pass.

Having heard the witnesses, read the telecommunications and other documentary evidence and considered what was said in interview, I take the view that their reasoning was as follows. D1, D3 and D4 clearly knew each other far better than they did D2, who had been approached to join the group very late in the day. The three of you belonged to the Viajeros Facebook chat group which, in English, translates as the Travellers. That Facebook chat group pre-dated this enterprise and clearly suggests an ongoing historic connection which D2 did not have.

That group also included someone called Nora Noora, who appeared to be the person in the Philippines who was liaising with you throughout in respect of the importation of the drugs. Nora also appeared to be liaising with someone referred to as "Madam" or "Fei Fei" and who was most probably the ultimate boss as far as you were concerned, as there was no evidence before the court in trial of any other Philippine connection, although, of course, we have some now.

During the week before you imported the dangerous drugs, the evidence suggests that it was D3 who recruited D1 and D2, that is, Miss Chua and Miss Thomas and who liaised with Nora in respect of the booking of tickets and travel. It was at the home of D3 that you all met prior to departure for a meeting and it was D3's driver who took you at least part of the way to the airport.

It would appear from prosecution exhibit P33(b) and defence exhibit D4/2 and from the telecommunications evidence that D4's boyfriend, "Jerson", was originally going to travel with you but did not do so and that is why D2 was required. Indeed, D4 made reference to her boyfriend and his connection to the criminal enterprise within the telecommunications evidence during the period of time she was in Chung King Mansions.

On that evidence it was D4 who was liaising with the black man in Chung King Mansion and who handed over the drugs which was captured on CCTV. It was also D4 who liaised with both Fei Fei and Nora in respect of the delivery of the drugs and the appropriate disposal of the bag they were contained within.

D3 liaised with Nora from Hong Kong but to a lesser extent than D4 and, whilst I take the view, as the jury did, that there was more than sufficient evidence to show that she knew exactly what was going on and played her part, she communicated more often in respect of D1 and D2 whose whereabouts, at that time, were unknown and about whom she was clearly concerned.

It would appear that in order of culpability, D4 was at the forefront of the arrangement to supply the cocaine to others in Hong Kong and that D3 knowingly assisted her and was the one who organised the couriers and handled travel arrangements with Nora in the Philippines. It would also appear that D1 was merely a courier.

I take the view that one reason the jury found D3 and D4 guilty of the charge of conspiracy was because they felt that the culpability of D3 and D4 was greater than that of the 1st defendant. This is evidenced by the telecommunications evidence. As a substantive count was in the alternative to the conspiracy count, they may have mistakenly felt that the substantive offence was, in some way, less serious than the conspiracy count which we all know is not the case.

In terms of quantity that would be the case, as D1 had been found guilty of importing only 944 grams of cocaine whereas the prosecution rested its case on count 1 on an agreement to import approximately 4 kilograms of cocaine between all four defendants.

It is to this issue I have addressed my mind because I take the view that the fact that D2 was found not guilty of either count and that D1 was found guilty of the substantive count alone and not the conspiracy does not affect the prosecution case in any way. D2 may very well have understood that she was importing cocaine into Hong Kong or that she was agreeing with others to import a total of 4 kilograms of cocaine between them. D1 may very well have been recruited to import 1 kilogram of cocaine without knowingly agreeing with the others to import 4 kilograms.

By their verdicts the jury found that D3 and D4 knowingly agreed to import cocaine and intended to do so. Given what I have said about the roles which they played, either as a recruiter and liaison or as the go-between with the hierarchy and also with those in Hong Kong, it was perfectly proper for the prosecution to indicate that they agreed either with each other or with other persons to import 4 kilograms of cocaine.

The prosecution is prepared to accept that the court sentence them on the basis of 2 kilograms and not 4 kilograms. I must add that this was done at my suggestion after trial, not because the facts were not made out upon the prosecution's case, but rather to avoid any issues arising upon the verdicts as returned and to focus everyone's mind upon the cocaine which the prosecution say D3 and D4 imported and ultimately handed over.

Unfortunately, defence counsel for D3 and D4 have leapt upon that suggestion and the generosity of the prosecution as a means to suggest that D3 and D4 were found guilty of agreeing to import that which D1 and D2 were found to have imported and not the 2 kilograms which the prosecution say they personally imported and handed over in Chung King Mansion.

With respect, I find that suggestion disingenuous and I do not accept it. The evidence against D3 and D4 was powerful. D3 recruited D1 and D2. They had met with D1 and D2 before the flight at D3's house. They had travelled together to a restaurant carpark in order to switch vehicles in which were located the four bags of drugs. They had all individually chosen identical bags at random which were in a van which took them to the airport.

They had all swapped their personal items from their own bags into the bags which they had personally chosen, knowing that they were not to return to the Philippines with those bags. The bags smelled heavily of menthol and comment was made in the van about that and later when D3 and D4 were in Chung King Mansions.

They travelled together with D1 and D2 by airplane to Hong Kong sitting together in one row. D3 and D4 were in communication with Nora and Fei Fei almost immediately they landed in Hong Kong. Their location and progress was being constantly monitored by Nora and Fei Fei. D3 was recorded as saying things such as, "Thank God I was saved" in reference to her bag being checked by Customs.

Both D3 and D4 asked, on more than one occasion, about the person who was to collect the bag from them. D3 and D4 were clearly anxious about handing the bags over, especially as D1 and D2 were missing. Nora even said to D4, "They are aware that what we are doing is illegal" and that's in reference to D1 and D2, to which D4 did not demur. She said to D3 that D1 and D2 could be killed to which D3 did not demur and D4 said, "We're in danger Ma'am if we bring home the bag, especially if the two are being held." She also referred to, "It's broken and smells" and "Where should we throw it."

These are just a few examples of the state of mind of the two of you from many, many incriminating messages from which the jury inferred your knowledge and agreement to trafficking dangerous drugs.

The question posed by counsel now is how much and which cocaine? I hope I made it clear to Miss Mohamed and Mr Chau on behalf of D3 and D4, that this was not an opportunity to haggle over quantities especially as none of the defendants accept the verdicts of the jury and, therefore, I am not prepared to offer an alternative basis in evidence before me which they could have done by way of Newton hearing. They are either to be sentenced on the basis of 4 kilograms or they are to be sentenced on the basis of 2 kilograms, remembering at all times that this is a charge of conspiracy and not the substantive offence.

I took the view that the evidence readily showed D3 and D4 agreed to import 2 kilograms as between themselves. That is because count 1 was proceeded with on the basis of an importation of 4 kilograms of cocaine; 1 kilogram per defendant. D3 and D4 were found guilty of that count.

There would be no difficulty with this court sentencing them on that basis regardless of the verdicts against D1 and D2 because the trial was run on the basis of knowledge alone and it would perfectly possible for D3 and D4 to agree to import 4 kilograms whilst D1 and D2 did not know they were doing so.

The matter does not become more complicated because D2 was acquitted and D1 was found guilty of the substantive count of trafficking in the cocaine which she personally imported. As I said previously, it is technically possible for D3 and D4 to be guilty of conspiring to import 4 kilograms of cocaine representing the 4 kilograms prosecution say all four of you imported for D1 to be guilty in 1 kilogram alone. It is, after all, the agreement which is the nub of the conspiracy and not the substantive act.

The prosecution is willing to accept for sentencing purposes that D3 and D4 agreed to import at least the amount which the prosecution say they must have carried between them which is approximately 2 kilograms. Alternatively, as Mr Wright said, 1.867 kilograms which represents the total said to have been recovered from D1 and D2. That alternative basis would not prejudice the defendants for sentencing purposes.

He went so far as to suggest the prosecution had no view as to whether the court would consider the 2 kilograms had come from what they carried or was recovered from D1 and D2. He said that on the last occasion. He made it plain that this was not his point but he was reacting to discussion from defence counsel and it was for them to make that argument out.

The suggestion that D3 and D4 be sentenced on the basis of agreeing to import that which D1 and D2 brought with them is not, in my view, logically made out on the facts. There was nothing before the jury which would support a finding that D1 knowingly and D2 unknowingly imported dangerous drugs into Hong Kong because of an agreement between D3 and D4 and others but D3 and D4 with identical bags were importing nothing, or at least not cocaine.

It also does not answer the absurdity of ignoring the fact that D3 and D4 went ahead and delivered something in the middle of the night to black men in Chung King Mansions which, they felt, was so dangerous that they did not know what to do with the container that it had been carried in and were in fear for their own safety and for that of D1 and D2.

In considering whether the court should sentence D3 and D4 to agreeing to import just 2 kilograms of cocaine and not 4 kilograms which was the prosecution case before the jury, the only plausible and logical basis for such an approach would be on the basis that it was the 2 kilograms the prosecution say was in their possession and was handed over to a third party in Chung King Mansion. The suggestion that they carried something else to Chung King Mansion and handed it over to someone in the lobby that morning is not plausible or logical and I reject it.

The only irresistible inference, on the evidence, is that it was also cocaine. Again, stressing the point that this issue arises only because the court must attribute the correct tariff for sentencing from the sentencing guideline on trafficking in dangerous drugs. I hope I have made myself clear.

All three of you, the court accepts, are of good character and mature and I have taken that into account. Miss Crebbin, on behalf of the 1st defendant, Miss Chua says she does not accept the jury's verdict and, therefore, her culpability in this matter. As a result, all Miss Crebbin could properly submit in mitigation was the background of the defendant. And as to the level of sentence, rather than referring to any remorse - which she clearly does not have - nor to her personal circumstances at the time of offending and her reasons for committing this offence and that has left me with nothing other than the facts as I have heard them and read them and as I consider the jury must have applied them.

She has mentioned a request for a discount from the sentence in the range of 10 to 15 per cent which I should give as a result of the assistance given, she says, by all three defendants.

I do take into account the fact that D1 was the first to take positive action to give assistance and that as a result of her assistance and the assistance given by the other two defendants, Nora Noora was apprehended and her apprehension lead to the arrest and prosecution of Katumba and his wife. That appears to be a major breakthrough in the trafficking of dangerous drugs in the Philippines and, it would appear, I am told, a reduction in trafficking from there to Hong Kong. Time will tell. I also note that the latter prosecution came about because of the assistance by Nora Noora and that none of the defendants has the opportunity or ability to give evidence against Katumba, whilst Nora Noora is not to be prosecuted, presumably because she has been given immunity.

Miss Mohamed, on behalf of D3, Miss Roque also wished to take advantage of the prosecution's generous concession as to 2 kilograms rather than 4. She went further and valiantly attempted to suggest, as did Mr Chau, that the proper tariff should be for just 1 kilogram, that is that which the 1st defendant was found to have trafficked. She also must limit her submission to the level of sentence but asks also that I consider the assistance that the 3rd defendant has given to the well-known program of Father Wotherspoon and to the letter from him to the court dated 9 December 2017. I have taken that into account in respect of all three defendants in that they have sought to assist this program which is to be commended.

Miss Mohamed further submits her client is entitled to a discount for the assistance she says she gave which led to the arrest of Katumba and his wife in the Philippines through Nora Noora.

Mr Chau, on behalf of the 4th defendant, Miss Creus prays in aid her background as a qualified professional who comes from a good Christian family. It is all the more sad therefore that she thought it necessary or wise to become a drug smuggler, given all the advantages she has had, which the others had not.

Mr Chau adopts all that has been said most eloquently by Miss Crebbin and Miss Mohamed but takes a more pragmatic approach in respect of the proper discount which the court can give for assistance. He suggests a range of between 5 and 10 per cent would be more appropriate on the authorities, and I agree with him.

Whilst I am sympathetic to their position, these women did not give assistance until after arrest. It was in their best interests to seek to mitigate their inevitable sentence. Their assistance did not lead to the prosecution of Nora Noora but indirectly to that of Katumba and to a lessening of trafficking of dangerous drugs into Hong Kong for the time being but they have not given evidence and there has been no guilty plea.

The outcome of Katumba's trial is not yet known. It is open to them - and I make this point to them because they will not be represented after today - it is open to them to seek a greater reduction if other matters to their credit come to light after today's sentence. But in the light of the relevant sentencing authorities, as matters stand today, I feel that the appropriate discount is one of 7 per cent.

Sentencing turns firstly on the amount and, thereafter, upon all of the relevant surrounding circumstances, including amongst other things the role played by the offender. I have no personal mitigation advanced to me for why you agreed to commit this offence given that none of you accept the verdict of the jury.

Nevertheless, in all of the circumstances of this case, I am prepared to accept the generous view taken by the prosecution as to the amount agreed to be carried being at between at least 1.867 kilograms and approximately 2 kilograms in respect of D3 and D4 for the reasons I have given above.

The guidelines for sentencing in respect of the importation of dangerous drugs into Hong Kong can be found within HKSAR v Lau Tak Ming [1990] HKLR 370 and HKSAR v Abdallah [2009] HKLRD 437. For between 600 grams and 1200 grams the range of sentencing is 20 to 23 years. For between 12 grams and 4,000 grams it is 23 to 26 years. For trafficking in dangerous drugs by reason of the importation of 944 grams of cocaine, Miss Chua, you face a starting point of sentencing under the guidelines of 21 years and 9 months.

For conspiracy to traffic in dangerous drugs by importing dangerous drugs into Hong Kong, Miss Roque and Miss Creus, you both face a starting point, under the guidelines of 23 years and 9 months.

I also need to reflect the various roles you played within that sentencing spectrum. In my view, Miss Creus, you played the major role and were more heavily involved by a small margin than Miss Roque. Whilst you, Miss Chua were no more than a courier.

That being the case and because I have some degree of discretion within the sentencing guidelines to reflect the facts as I believe the jury found them to be, I consider the actual starting point for you, Miss Chua should be 21 years and 3 months.

For you, Miss Roque I am going to enhance the original starting point by 6 months to reflect your role as a recruiter and liaison and therefore the starting point I finally adopt will be 24 years and 3 months.

For you, Miss Creus, having a more crucial role, I intend to enhance your starting point by 1 year to 24 years and 9 months.

There is also the aggravating factor of the international element of this offending which is referred to in HKSAR v Abdallah and which attracts an enhancement of 1 to 2 years for between 500 grams and 1,000 grams and, thereafter, above that at the court's discretion taking into account the totality principle.

You, Miss Chua had 944 grams and will, therefore, receive an enhancement of 1 years and 9 months. You, Miss Roque and Miss Creus will receive an enhancement of 2 years. That makes your sentence, Miss Chua 23 years and you, Miss Roque, 26 years 3 months and Miss Creus your sentence 26 years and 9 months.

But I will also take cognisance of the programme run by Father Wotherspoon and the effect that is having in particular in the Philippines and in the number of people seeking to traffic from that country into Hong Kong. All three of you have been participating in that programme and for that reason, I will discount your sentences across the board by 6 months each. So that make 22 years and 6 months for Miss Chua, 25 years and 9 months for Miss Roque and 26 years and 3 months for Miss Creus.

I will also discount your sentences by approximately 7 per cent for the assistance that you have given within the Philippines which will reduce your sentences, Miss Chua to 20 years and 11 months. Miss Roque to 23 years and 11 months and Miss Creus to 24 years and 5 months. Unfortunately, there is no other mitigation which can affect the sentences which I am about to pass.

Miss Chua, you will go to prison for a period of 20 years and 11 months.

Miss Roque, you will go to prison for a period of 23 years and 11 months.

Miss Creus, you will go to prison for a period of 24 years and 5 months.

Court rises - 12.41 pm

20 August 2018