The facts are in a narrow compass and the issue at trial was clearly defined.
On 28 November 2019, the accused attended at the UPS facility near Shatin to collect a parcel. The parcel was from Kenya and the declaration of contents asserted that the parcel contained an oil filter. The parcel was addressed to Nur Janatin. A Hong Kong contact number was given.
The accused turned up at the UPS facility and asserted she was to pick up the parcel at the behest of Nur Janatin. She showed the person who she thought was a UPS employee (who was, in fact, an officer of the Customs and Excise Service disguised as a UPS employee). She showed an image of an identity card bearing the details of Nur Janatin. She also produced her own identity card. She took possession of the parcel, walked out of the UPS facility and was thereupon arrested by the Customs and Excise Service officers.
It is an admitted fact that on 26 November 2019, a set of consignments were examined at the Lok Ma Chau Customs Control Point. One of them at least purported to come from Nakuru in Kenya. The waybill declares the goods to be an oil filter. The parcel was opened and indeed three oil filters appeared in the parcel. The consignment was addressed to Nur Janatin and a contact number of +852 55851037 appeared in the waybill. The delivery address was 28A, 2nd Floor, Kam Tin Shi Street, Kam Tin, Yuen Long, in the New Territories of Hong Kong. The parcel was a UPS parcel.
After examining the package, the Customs and Excise officers responsible found a substance in the oil filters which tested positive for cocaine.
Customs officers attempted a controlled delivery at the address on the waybill which was unsuccessful. That was 28 November 2019. The officers tried but failed to call the Hong Kong number on the waybill.
Following her arrest on suspicion of having committed an offence against the Dangerous Drugs Ordinance, the accused was cautioned. She said she understood. She was then asked, “Who does the parcel belong to?” She said, “My friend.” She said her friend was Nur Janatin. She said she was asked how she would handle the parcel and she said she would take it to her boyfriend in Kam Tin Shui Tau Tsuen. It was clearly understood that the reference to her boyfriend was a reference to the boyfriend of Nur Janatin. She told the officer that she did not know exactly where she was to meet that person but she would be told. She was asked who Nur Janatin’s boyfriend was and she gave his name as Kelly, who was a black person. She was then asked whether she would receive any reward. Her answer was in the negative, and finally she was asked did she know what was in the parcel. Her answer was “I don’t know”. The accused was then asked what her own address was and she gave that. She then gave the details of Nur Janatin’s boyfriend which was in her own mobile phone. To do this, she willingly gave the code to her phone to the interrogating officers.
The customs officers then took her from the place of arrest to a car park where a post-record was prepared of the preceding exchange. The exchange was in English and although the accused is an Indonesian national, it was clear that she spoke sufficient English to have communicated with the officer. In any event, it was rendered into Indonesian and translated to her later on the 28th. The post-record was produced at trial without objection.
The accused agreed to participate in a controlled delivery operation in the hope of catching the person she said was the boyfriend of Nur Janatin. I will return to that in a little while.
The next day, that is on 29 November 2019, the Customs and Excise officers took a video-recorded interview from the accused. The video-recorded interview was conducted under caution. In the course of the trial, the accused objected to the reception into evidence of the interview because she said that inducements had been made. Following a voir dire, I rejected her version of events and ordered that the video-recorded interview and its transcripts be received in evidence. At trial, the accused maintained this position. The jury were directed that if they thought the assertions that the accused was improperly induced to give the video-recorded interview, they should give it no weight. A reasonable inference from the verdict of the jury is that they gave the video-recorded interview full weight. The video-recorded interview did not, in any event, advance the total sum of information coming from the accused. It was, put simply, a more detailed version of the admissions made at the scene and reduced into the post-record.
Reverting to the controlled delivery operation which was in the late afternoon and early evening of 28 November 2019, her mobile phone was unlocked with her consent and she had a conversation with the purported boyfriend of Nur Janatin. She explained her delay in contacting him in a manner which had been agreed between her and the customs officers handling the controlled delivery. After this initial conversation which arranged a place to meet, the officer and the accused went to the vicinity of that place but no one turned up. At the behest of the officer of the Customs and Excise Service who accompanied her during the process, she made a number of other calls to the purported boyfriend of Nur Janatin. I am sure she did everything she could to assist in the controlled delivery and I venture the observation that it was certainly no fault of hers that the operation failed. Although I could not go so far as to say that waiting as long as they did before the operation got underway (she was arrested shortly after 2 pm and the operation commenced about four hours later) meant that the operation was almost guaranteed to fail. It certainly meant that a suspicious person anxious for his own self-preservation such as the purported boyfriend of Nur Janatin might well have been extremely reluctant to walk into the trap being set by the Customs and Excise Service.
At trial, there was only one issue: whether the accused could be proved to have known that there were dangerous drugs in the parcel which she picked up from the UPS facility. The prosecution put their case upon the basis she was dealing in or with the drugs. They could easily have presented their case on the basis of possession for unlawful trafficking. Arguably, she was aiding and abetting importing. In any event, given that the case was presented on the basis of dealing in or with the drugs, I directed the jury it was necessary for them to be satisfied that the dealing was for the purpose of unlawful trafficking. The act of dealing in or dealing with the dangerous drugs for the purpose of unlawful trafficking was that she admitted she intended to hand over the parcel to the purported boyfriend of Nur Janatin. In my judgment, no one could be, in any doubt, this was the basis upon which the jury convicted.
It is pertinent to note in this case, the identity card of Nur Janatin was a lost identity card. The holder of that card, Ms Nur Janatin, testified that she lost that card sometime before June 2018. It was replaced thereafter. She, Ms Nur, testified and told the court that she was a domestic helper. Critically, Ms Nur testified that the contact number which the accused asserted was Ms Nur’s phone number which appeared on the parcel was not and never had been a phone number of Ms Nur. She testified she did not know the accused and was most assuredly not her friend (The accused had asserted on attempting to pick up the parcel that she was doing so at the behest of her friend, Nur Janatin, and on arrest made the same assertion). The prosecution produced the phone records which rebutted any suggestion of telephonic contact between Ms Nur and the accused.
In her testimony at trial, the accused attempted to navigate around this unfavourable piece of evidence by asserting that:
(1) Her own friend was a person known as Nur Yatin and that she had asked the accused to pick up the parcel because she was in hospital;
(2) The number on the parcel was in truth Nur Yatin’s number, but she did not call this number because she always contacted her through the boyfriend of Nur Yatin’s WhatsApp facility and never called Nur Yatin on her own number; and
(3) When she was given the image of the identity card of Nur Janatin, she simply assumed that this was the correct name of her friend, Nur Yatin, and the admissions that she made to the customs officer was on that premise.
Implicit in the jury verdict must have been they rejected this absurd and fanciful version of events. Had I been the tribunal of fact, I would have rejected such a version out of hand.
The factual basis upon which the sentence must be imposed is that the jury must have found to the criminal standard that the accused, in accepting the parcel and carrying it out of the facility, knew that there were dangerous drugs in the parcel and at the time she intended to unlawfully traffic the contents of the parcel with the purported boyfriend of Nur Janatin. Given the definition of “trafficking” in section 2 of the Dangerous Drugs Ordinance, the jury could easily have found that the accused simply knowingly possessed the dangerous drugs for unlawful trafficking. On no basis would this make even the slightest difference to sentence.
When questioned by counsel for the accused, each of the officers questioned on the topic agreed that the accused was co-operative with the officers from the moment of her arrest.
Antecedents and Mitigation
The accused is an Indonesian national. She was born on 10 February 1984 and is, accordingly, 37 years of age. She is a Form 8 holder and of course therefore is unemployed.
She has previous convictions but unrelated to anything concerning dangerous drugs and trafficking in drugs, and I propose to ignore those previous convictions for the purpose of sentence.
She studied at secondary school. She had worked as a domestic helper in Singapore between 2007 and 2009 and then between 2009 and 2011 in Hong Kong. Her convictions are essentially immigration-related and commenced with her remaining in Hong Kong after the completion in 2011 of her lawful employment here.
Sentencing Principles
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as cocaine, and it is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. There are consequences - sometimes serious ones - for the families of those who become addicted to cocaine.
The view of the community is reflected in the maximum sentence provided by section 4 of the Dangerous Drugs Ordinance. That provides for convictions on indictment of a maximum sentence of life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the level of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drug, the subject of this charge.
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370, in the Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685. The Court of Appeal declared the guidelines in R v Lau Tak Ming & Ors (above) are appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. The decision in Abdallah considers the position where the quantity involved is greater than 600 grammes. It suggests a sentencing band of between 20 and 23 years for between 600 grammes and 1,200 grammes.
Role of the Accused
It is critical to determine the role of the accused in the crime: HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974, §49, 58-61, 64-68. In this case, the Court of Appeal recognised that although the analytical starting point of the sentencing guidelines for drugs such as cocaine start upon the premise of sentencing for a courier or a storekeeper, there is a range of culpability even if a trafficker can be characterised, as in this case, as a courier. The Court of Appeal held that an accurate characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence the accused above or below the mathematical application of the relevant guideline. The Court of Appeal rejected a sentencing approach in trafficking in dangerous drugs where the sentence was based solely on narcotic content.
There is no basis for enhancement for the international element in any event. The reason for this is there is no evidence in the trial which proves that the accused knew that there had been importation. There are high standards of which proof must attain in relation to such issues. For this, see HKSAR v SK Wasim [2020] 2 HKLRD 1139.
There is also a recognition in the Court of Appeal in HKSAR v Ali Qasim [2020] HKCA 56, and the point made Justice Macrae VP in that case is that the sentence must, in evaluating the position of the person who is involved in the importation, keep a sense of proportion. He observed:
29. Although the present case can properly be said to involve an “international element”, the evidence and the jury’s verdict established no more than that he had gone to the Post Office in question for a reward to collect a parcel from abroad, which he knew contained dangerous drugs. The screenshot on his mobile telephone, which he produced to the Post Office staff, contained the tracking details of the parcel in its journey from São Paulo in Brazil to Hong Kong. Such evidence, together with the fact that he was collecting a parcel which he must have known had arrived at the Post Office from abroad, was sufficient to establish the “international element” by way of aiding and abetting the importation of cocaine into Hong Kong. This Court has, on facts very similar to the present case, more aptly characterised such conduct as “facilitating the importation into Hong Kong” of dangerous drugs: see HKSAR v Fitri. However, the “international element” involved, in that case and in this, was in a rather different league from the international courier who himself trafficks dangerous drugs across the border into Hong Kong, whether the drugs are secreted in his person or otherwise in his possession.
In my opinion, the accused in this case can justly be labelled as a courier in the sense that she was a carrier of the drugs but her role was to take possession of the drugs from UPS and pass them onto those who instructed her. She is a cog in the machine and to characterise her as a vital cog would be to grossly overstate the position.
Form 8 Holders
The accused is a Form 8 holder. That is a relevant factor in considering sentence. In HKSAR v Sandagdorj Altankhuyag and Another [2014] 1 HKC 206, the Court of Appeal considered that there were circumstances in which a person in the position of the accused might face an aggravation of sentence by reason of this situation. In that case, the Court of Appeal was considering a Form 8 holder who had together with another person set out on a spree of theft in a well-known entertainment area in Hong Kong. Macrae JA, as he then was, the court observed in relation to this person (who was the 2nd appellant before the Court of Appeal):
“Where someone in the position of the 2nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this city’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.”
HKSAR v Sandagdorj Altankhuyag and Another was followed in HKSAR v Baljit Singh [2020] HKCA 164, 4 HKLRD 598, 1 HKC 48 and HKSAR v Mateluna Araya Hugo Pedro and Another [2020] HKCA 702.
Not every crime would attract this element of aggravation or, if there is to be an enhancement on account on this form of aggravation, there is a wide discretion reposed in the sentencing court. However, in this case the accused was a link in the supply and distribution chain of cocaine. I suspect many Form 8 holders are, basically exploited in a cold-blooded way but the accused is a party to the participation in a crime which in Hong Kong is viewed with the utmost seriousness. This crime was, borrowing the words of Macrae JA, aimed at the community who have accorded her temporary protection. The degree of aggravation must be clearly proportionate to the actual criminal activity involved. Trafficking in a small quantity of dangerous drugs would clearly attract a lower degree of enhancement of sentence whereas trafficking in a substantial quantity might clearly attract a greater enhancement. The role played by the Form 8 holder is highly germane to the application of such enhancement as there may be.
Application of Sentencing Principles
On the basis of an arithmetic calculation of the appropriate starting point, 21½ years’ imprisonment would be appropriate. However, it is critically important to determine the role of the accused in determining where in relation to the arithmetic mean the sentence should lie.
I think it is appropriate in the circumstances to sentence below (but not much below) the arithmetic calculation of the starting point. The role of the accused in this case was to pick up the parcel from UPS and pass it to the purported boyfriend of Nur Janatin. In her testimony, she asserted her only payment for this act was reimbursement for expenses. While I believe that she was reimbursed for expenses, I am deeply cynical about the implied assertion that she only received expenses and I strongly suspect that there was a form of reimbursement. I think that it is likely that this is the true meaning of payment in the screenshots of the communications between her and the purported boyfriend of Nur Janatin. However, disbelief and suspicion are not sufficient to convert my analysis into being sure that she received a reward (other than expenses), and accordingly, I cannot sentence on that basis. In my opinion, her role as collector of the parcel and passer of that parcel to someone who is almost certainly a major cog in the distribution chain is the appropriate basis upon which to sentence. Accordingly, I would reduce the starting point on this account to 20½ years.
The accused is a Form 8 holder and, as I have already discussed, this is relevant to sentence and could potentially enhance that sentence. The offence is serious and it is manifestly aimed at Hong Kong in that just over 900 grammes of cocaine might have been ingested by persons in Hong Kong with all the negative personal, medical and social consequences of that. Balanced against the substantial quantity must be the fact she is, on any view, a very small cog in the distribution machine. I was sorely tempted to enhance the starting point and the extent of my temptation was of the order of between 3 and 6 months. However, in the end, serious though the crime is by reference to the quantity of narcotic, I judge her role as at the lower end of involvement and the Form 8 enhancement must proportionately reflect that. Accordingly, there will be no such enhancement.
Disposition
Would the accused please stand up? This woman dealt with a dangerous drug and did so for the purpose of unlawful trafficking. The jury, by their verdict, must have been sure that she knew. My duty is to reflect the community’s view of the seriousness of what she did, notwithstanding, her role.
There is an element of injustice in this sense. The worst criminal, the purported boyfriend of Nur Janatin, that is Kelly or Boss, is out there free. He is probably using some other Form 8 holder to do his dirty work, little caring (assuming he cares at all) about the fate of this accused. All I can say is if he happens before this court charged with trafficking: heaven help him. His sentence would be way over the arithmetic mean.
The least sentence I can pass upon this accused is 20½ years. That is the order of the court.