HKSAR v. Raja Rajeswary P Kagasfaron

HCCC 371/2019

[2020] HKCFI 2981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 371 OF 2019

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

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COURT: The defendant was found guilty after trial of one count of trafficking in dangerous drugs when she imported 853 grammes of methamphetamine hydrochloride into Hong Kong from India on 22 January 2019.

Ms Rajeswary is in fact a Malaysian citizen. Prior to this offending, she lived in Johor but travelled daily to Singapore to work as a quality controller. She has a Diploma in Information Technology. She speaks Malay, Tamil and English. Although she had the benefit of a Tamil interpreter throughout the trial, it is clear she has a good command of spoken and written English. She is now 28 years old and of good character.

In trial, the defendant told the jury that she had met and formed a romantic relationship with someone known as Deepan Raj in January 2018. She said she was in love with him and she lived with him for a very short time but by June or July of that year, they had broken up. However, they remained friends thereafter.

According to the defendant, it was Deepan who first suggested in December 2018 that she travel to India to carry something for him. She told the jury that she thought she was being asked to carry diamonds and had not realised the real risk of doing so.

The arrangements for her trip were not made by Deepan but by someone called Nanthini who, she said, was Deepan’s new girlfriend and funded by someone called Max, otherwise known as Jackie Udoh Maxwell, who lives in Hong Kong. She travelled first to Mumbai and then to Delhi where she met up with a Nigerian man in order to pick up the diamonds which were professionally sealed in three tins labelled “rice flour”. She then flew from Delhi via Ahmedabad to Hong Kong where she expected to meet Max and she was to hand over the diamonds to him.

The defendant maintained throughout her trial that she had agreed to carry diamonds and not dangerous drugs. She continues to maintain that is the case. She said she had agreed to do this for a reward of Malaysian Ringgit 6,000, which is approximately HK$11,000. This is not consistent with what she said upon arrest or in her video-recorded interview. Upon arrest, she said that she did not know what was in the tins and that they had been given to her by her brother who had told her the tins contained sweets. In interview, she said the tins had been given to her as food by a man in Delhi. She said that the trip to India had been arranged by Deepan. Deepan was not her brother, she said, he was her good friend. He was older than her and like a brother. She did not mention he had been her lover.

The trip had come about because she had casually mentioned she would like to visit Disney in Hong Kong and he had said he had friends who would pay for the trip but she could not fly direct. That is why she had flown first to Mumbai and then to Delhi where she picked up the three cans of what she was told was food by a Nigerian man she did not know. She said she thought they were indeed food which she would have eaten if she had been hungry. She maintained she thought they contained Indian sweets, and when it was pointed out that it was labelled “rice flour”, she said she had not noticed.

Her story unravelled, however, when she was shown the multiplicity of messages on her telephone. Nevertheless, she was not full and frank with the officers at that time and provided some but not all of the information available to her.

Her story changed once more when she came to trial. The records of telephone conversations were damning. Whether she was trafficking in diamonds or drugs, she certainly knew she had agreed to do something illegal and was concerned about being caught. Her story that she did not know she was carrying drugs and that she thought that carrying diamonds was something for which she was at little risk was not believed by the jury, and that is no surprise. She clearly lied from beginning to end.

Since then, the defendant has made some effort to mitigate the large sentence which she now knows she is facing. Given that the main perpetrators of this crime are close friends in Malaysia, you would think that there would be very little difficulty identifying them, but that does not seem to have produced any prosecution in Malaysia as of yet. In trial, she openly indicated she wished to do so and showed no remorse whatsoever for the fact that any arrest would put them at the risk of the death penalty. Since that date, it appears this has come to nothing to date.

Mr Bullett urges me to give her the benefit of the doubt. She provided information at the time of arrest which could not have been ascertained from her mobile phone, he says, and he tells me she has provided all of the information she has, even though she lived with Deepan in 2018.

The relevant sentencing guideline for the offence of trafficking in ‘Ice’ is HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking in between 600 to 1,200 grammes of ‘Ice’, the sentencing range is 20 to 23 years. For trafficking in 853 grammes of ‘Ice’, I consider an appropriate starting point after trial in all the circumstances of this case to be 21 years and 3 months. There is also the aggravating feature of importation for which, on Mr Bullett’s urging, I intend to enhance your sentence by just 1 year and 9 months, which makes a total of 23 years.

You decided, Ms Rajeswary, to put the prosecution to proof, that is your right, despite the fact that you knew full well what you had done. That is, of course, your right but you cannot seek to obtain any credit for so doing and so you can receive no discount upon that sentence. That leaves the issue of whether your actions after the trial warrant any discount from the sentence I must pass.

I have considered that against the background of your lies upon arrest and upon interview and your further lies in court when you chose to give evidence upon your own behalf even though you had every right not to do so. On that occasion, you lied under oath.

I have also taken into consideration the efforts you have made to assist and the circumstances surrounding those efforts. If what you told the jury is true, you would never have been able to personally identify the man involved in Hong Kong. If what you told the jury is true, you could never have been able to identify the man in Delhi. That leaves only Deepan and Nanthini, and Mr Bullett assures the court that you have done all that you can. I am therefore persuaded to mark that effort, even though I am somewhat sceptical about your motivation, and mark it accordingly.

You are extremely lucky, Ms Rajeswary, that you chose to traffic in dangerous drugs outside of Malaysia. You told the court you knew that it was a capital offence in your own country and yet you willingly took the risk in our jurisdiction and you must therefore suffer the consequences.

There is a significant deterrent factor in sentencing international drug trafficking. It is an evil which we do not wish to encourage and cannot be seen to be undermined by lenient sentences. However, you have assisted in Father Wotherspoon’s programme, which I commend, and I will reduce your sentence by 3 months for that. You have also sought to assist at the time of your arrest and subsequently and even though I do not believe you have been completely frank, I will reduce your sentence further. You will go to prison for 21 years and 1 month.