HKSAR v. Pramesti Sabrina Wilis Widuri

CACC 257/2019

[2020] HKCA 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 257 OF 2019

(ON APPEAL FROM HCCC NO 221 OF 2018)

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Before:  Hon Zervos JA in Court

Date of Hearing: 8 May 2020

Date of Judgment: 14 May 2020

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J U D G M E N T

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1.On 14 August 2019, the applicant was sentenced by Deputy High Court Judge Stuart-Moore (the Judge) to 13 years’ imprisonment, following her plea of guilty on 23 July 2018 in the Magistrate’s Court to a single count of trafficking in a dangerous drug, namely 1.02 kilogrammes of a powder containing 846 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The applicant now applies for leave to appeal against her sentence.  An application for legal aid was refused on 14 October 2019 and the applicant appears in person in the leave hearing.

3.In her notice of appeal, the applicant does not specify any grounds against her sentence except to admit her wrongdoing and ask that she be treated leniently by having her sentence reduced.

4.The facts as outlined to the Judge and admitted on behalf of the applicant were that at around 9:10 pm on 7 August 2017, the applicant got into a taxi with a male in Jordan, Kowloon.  She sat at the rear passenger seat, right behind the driver.  At around 9:34 pm, the taxi was intercepted by police on Mody Road, Tsim Sha Tsui, Kowloon, and the applicant was asked to alight from the vehicle for the purpose of a search.  A woman police officer found a grey handbag placed underneath the driver’s seat, in front of the applicant’s feet.  The applicant initially said the bag did not belong to her but later admitted it was her bag. 

5.A search of the bag revealed one coffee powder paper box, containing the drugs in question, together with three keys and one mini Octopus card.

6.The applicant was arrested and stated under caution that somebody had asked her to carry the pack to the Shangri-la Hotel. Subsequently, in a video record of interview the applicant provided more details about her involvement in the offence.  She said her ex-boyfriend, Desmond, instructed her to pick up the paper box and the three keys from the staircase of the 13^th Floor of New Lucky House in Tsim Sha Tsui. She did as instructed and after collecting the items she put them into her handbag.  She knew the paper box contained drugs but did not know for sure what type of drugs they were.  She said Desmond told her to hand over the handbag, with the drugs and the keys inside, to an unknown Chinese male outside the Shangri-la Hotel.  She said Desmond promised he would give her a new handbag after she had done as he had instructed.  After she collected the drugs and the keys, she met up with her new boyfriend, the male who was travelling with her in the taxi, at the ground floor of New Lucky House.  The two of them then hired the taxi which was later stopped by the police.  She said when she saw the police, she put the handbag in front of her, underneath the driver’s seat, because she knew there were drugs inside and she was frightened.

7.The estimated street value of the drugs seized was $908,820. 

8.At the time of sentencing, the applicant was 34 years old and a Form 8 recognizance holder.  She was an Indonesian national who came to Hong Kong in 2013 to work as a domestic helper.  However, after about one year, her employment contract was terminated.  Instead of leaving Hong Kong, she chose to stay and it would appear sometime later she made a non-refoulement claim. 

9.It was submitted on the applicant’s behalf that she had become acquainted and formed a relationship with an African male by the name of Desmond.  It was explained that he dominated her, even after their relationship had ended.  He threatened her that she would face consequences if she did not help him deliver the drugs. 

10.In passing sentence, the Judge considered the sentencing guidelines laid down in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, and adopted a starting point of 21 years and 3 months’ imprisonment for 846 grammes of cocaine narcotic.  The Judge enhanced the starting point by 9 months because of the applicant’s status as a Form 8 recognizance holder at the time of the offence.  This resulted in a notional sentence of 22 years’ imprisonment.  No mistake was made by the Judge in relation to the starting point adopted and the enhancement he made to it.  See HKSAR v Ali Saif [2018] 6 HKC 19; HKSAR v Singh Gursevak [2019] 2 HKLRD 274.

11.The Judge gave the applicant full credit for her timely guilty plea and, together with her cooperation and assistance, he reduced her sentence to 13 years’ imprisonment, which represented a total discount of 41%.  I have considered the papers, and the discount to her sentence was generous in the circumstances.  See Z v HKSAR (2007) 10 HKCFAR 183, at [23]; HKSAR v Lo Sze Tung Stephanie, unrep., CACC 190/2017, 25 July 2018; and HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516.  Consequently, the applicant has no good cause for complaint of the sentence imposed on her.  If anything further comes of the applicant’s assistance to the authorities, which is duly assessed to be of additional practical use (bearing in mind the discount that has already been given to the applicant), then that is a matter that the applicant can appropriately take up with the Executive.  See HKSAR v Guache Arvelaez Liliana Josefina, unrep., CACC 119/2019, 26 November 2019, at [16] to [18].

12.The applicant’s application for leave to appeal against her sentence is without merit and her application for leave to appeal is accordingly refused. 

13.The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.

14.I wish to record that in the course of the leave hearing the applicant submitted to the Court a letter from Father John Wotherspoon dated 27 April 2020.  Father Wotherspoon was also present at the leave hearing and spoke to the letter.  His comments were in the form of a general complaint about the apparent lack of effective follow-up by the authorities in respect of information supplied concerning persons who are allegedly spearheading the drug trade in Hong Kong.  From information he has accumulated from convicted drug traffickers, he expressed concern that known drug dealers also act as informers in order to secure protection from the authorities while actively pursuing their drug trade. 

15.No doubt the authorities are acutely aware of the issues and problems that may arise in dealing with informers and would have put in place appropriate guidelines and safeguards in ensuring that no misuse or abuse takes place.  However, a disturbing trend has emerged of abandoned domestic helpers, remaining in Hong Kong, making non-refoulement applications, and associating with persons with a history of involvement in the drug trade.  Unfortunately, they find themselves being utilised by such persons in their drug activities and paying a heavy price for doing so.  It is important, therefore, that the law enforcement initiative does not stop there and the major miscreants of the drug trade once identified are properly investigated and brought to justice.

Mr Kelvin Tang, SPP (Ag), of the Department of Justice, for the respondent

The applicant appeared in person