HKSAR v. Metmat Khawanrawi (Ms)

HCCC 201/2020

[2021] HKCFI 2325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 201 OF 2020

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in dangerous drugs before Magistrate Stephanie Tsui and was committed to the Court of First Instance for sentence.

2.The defendant confirmed her plea of guilty and her admission of the summary of facts at the sentencing hearing and was duly convicted.

Summary of facts

3.The defendant flew in from Thailand in the morning of 29 April 2019.

4.From inside each of the sole of a pair of shoes that the defendant had with her in her suitcase, Customs Officers found a solid object wrapped in black adhesive plastic tapes.  The contents of the object were taken out and sent to the Government Chemist for examination.  They were found to contain a total of 44.1 grammes of a crystalline solid containing 43.5 grammes of methamphetamine hydrochloride (a salt of methamphetamine).

5.The street value of the drugs, known colloquially as ‘ice’, are estimated to be around $24,122.70.

6.In the subsequent cautioned video recorded interview, the defendant claimed that she came to know a ‘June’ via the communication application LINE in early April 2019.  ‘June’ invited the defendant to go on a trip to Hong Kong, with her plane tickets paid for.  The defendant thought ‘June’ lived in Hong Kong and would pick her up when she arrived here.  The shoes in question were handed over to the defendant by a person known as ‘Pol’ in Bangkok on the day before she flew to Hong Kong.

7.The defendant admitted and accepted that she had unlawfully trafficked in the drugs by bringing them into Hong Kong from Thailand.

Previous convictions

8.The defendant has no previous convictions in Hong Kong.

Background and mitigation

9.The defendant is a 20-year-old student and a Thai national.  She was 18 at the time of her arrest.  She is informally married and was living with her partner and his mother in Thailand.

10.Ms Crebbin told the court that the defendant committed the present offence out of her misplaced trust for others.  Her being naive and perhaps gullible.  By the time she realized that she was bringing the drugs into Hong Kong while she was still in Thailand, she felt that it was too late to try to get out of it and made the wrong decision to carry on with the trafficking.

11.Ms Crebbin told the court that the defendant had actively assisted in Father Wotherspoon’s ‘campaign’, with a letter from the Father in support.  She had provided information of ‘June’ to the Thai Police through the Father but they had decided that there was nothing that could be done, and those who arranged for the defendant to bring the drugs into Hong Kong behind the scene remain at large.

12.Ms Crebbin says that the defendant had put her family in Thailand at risk by providing such information and so should be given a further discount in her sentence.

13.Ms Crebbin relies on the case of HKSAR v Herry Jane Yusuph [2020] HKCA 974 to ask the court to properly exercise its discretion and take into consideration all the circumstances of the case, in particular the minor role the defendant played in the scheme of things, and adopt a lower starting point, and not the approach of a simple and strict application of the guideline tariffs based entirely on the quantity of narcotics.

Sentence

14.The maximum sentence for the offence of trafficking in a dangerous drug on conviction upon indictment is a fine of $5 million dollars and life imprisonment.

15.Sentencing tariffs for trafficking in ‘ice’ are found in the case of HKSAR v Tam Yi-chun, CACC 524/2011.  Subject to enhancement for aggravating factors and reduction for mitigating factors, the starting point for trafficking between 10 and 70 grammes of the narcotic ranges from 7 to 11 years’ imprisonment.

16.An arithmetical application of the tariff would lead to a starting point of 110 month’s imprisonment for 43.5 grammes of ‘ice’.

17.There is no dispute that the defendant’s role in this case is that of a courier of the drugs.

18.In the case of Yusuph, the Court of Appeal stressed that a discretionless starting point based upon quantity alone is not the correct approach in sentencing drug trafficking cases.  The judge must always consider the role played by the defendant and exercise the sentencing discretion accordingly.

19.With those principles in mind, I first of all find that this is a case where the defendant’s role as a courier is indisputable and proceed to consider her culpability and how to exercise my discretion.

20.I was told the defendant was a college student at the time.  She must be someone of considerable intelligence.  She could not have been entirely unaware of how the world operated.  It is her case that she had never been out of Thailand and thought that the all-expenses paid trip would be exciting, which was the reason why she accepted the offer.  She did, therefore, intend to benefit from the trafficking despite having no direct monetary reward.  She knew clearly what she was getting herself into.

21.Even after taking into consideration of how the defendant might have been enticed by a free trip to Hong Kong into committing the offence, I find that the defendant is fully culpable as a courier, and that nothing in the circumstances of the defendant’s commission of the offence or her background would cause me to exercise my discretion to adopt a starting point other than the one determined upon an arithmetic application of the tariffs.

22.I, therefore, adopt the starting point of 110 months’ imprisonment.

Aggravating factor

23.It is trite law that the importation of dangerous drugs into Hong Kong would add to the defendant’s commission of the offence an international element, for which there will be an enhancement of sentence[1]. Ms Crebbin, very fairly, acknowledged the presence of this aggravating factor.

24.The level of enhancement was considered in the case of Chung Ping Kun[2], and the following guidelines were laid down.

“9. As a broad guideline for drugs of this kind below 1,000 grammes we will suggest the level of enhancement as follows:

1)  Up to 250 grammes 6 months…”

25.Bearing in mind the quantity of drugs involved and the starting point I have adopted, I will enhance the defendant’s sentence by 6 months, leading to a sentence of 116 months’ imprisonment.

26.It is not Ms Crebbin’s case that the defendant had provided any assistance to the Hong Kong authorities.  There is no evidence that the defendant had done anything to assist the Hong Kong Police, which is understandable since all the liaisons with the traffickers were conducted in Thailand.  There is, therefore, to be no discount based on assistance to authorities in Hong Kong.

27.As for the assistance given by the defendant to the Thai authorities through Father Wotherspoon, I find that although nothing came out of it, by providing the information of ‘June’ as she did, the defendant had indeed placed her family who are still in Thailand at risk.  Such an act of bravery should be recognized and I find that a discount of 3 months should be given for her effort to assist, leading to a sentence of 113 months.

28.The defendant is granted the full one-third discount for her timely plea of guilty and sentenced to 75 months’ imprisonment.

Mr Raymond Chan, SPP of Department of Justice/HKSAR, for the Prosecution

Ms Diane Mervyne Crebbin, instructed by Tanner De Witt, assigned by Director of Legal Aid, for the Accused