HKSAR v. De Bruin Michelle Rosy

HCCC157/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 157 OF 2009 

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Before:   Hon Line J in Court

Date:     5 November 2009 at 10.21 am

Offence:  Trafficking in a dangerous drug (販運危險藥物)

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

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COURT:  Stand up, please.  I have to sentence you for trafficking in dangerous drugs.  The drug was heroin.  You brought into Hong Kong 751 grammes of it.  It was contained in 105 pellets.  Six were recovered from your vagina.  The rest you had swallowed.  You came from Turkey.  You were recruited in South Africa, of which country you were a resident. 

It will have been explained to you that sentencing here is based on the nature of the drug and the quantity of it pursuant to published guidelines.  With the guidelines that applied at the time of November of last year, you were beyond the top category, which ran out at 600 grammes, attracting a sentence after trial of 20 years.  

There is a new guideline which now caters for amounts in excess of 600 grammes.  It is not retrospective, but it in fact merely reflected the practice that had been followed by most judges before they were promulgated.  Bearing in mind the international element and the quantity of drugs, the starting point in the region of 22 years was to be expected in your case.  

It is the fact on the first occasion this case came before the court, before as he then was Deputy High Court Judge Macintosh, it was indicated on your behalf that you would plead guilty.  It is a great shame that you did not, because you would have known that you could have a third discount off the starting point for sentence under the guidelines.  What you did was to choose to gamble that seven years by running a dishonest defence in front of the jury.  The truth is the evidence was overwhelming.  You were bound to be convicted, in my view. 

The one-third discount is applied across the board no matter when a man or woman may plead.  The rationale of the discount and its size is really based at this level upon expediency, because it is right that guilty people should be encouraged to plead guilty for obvious reasons.  True remorse at this level of sentence is not really, in my view, a factor.  Thus it comes about that your ill-informed decision to fight this case, I suppose reached in desperation, is going to cost you more than seven years extra on your sentence.  You have only yourself to blame for it.  One can see how someone in your position, a mother with four children, would take a desperate course if it held out even a slight prospect of you getting back to them.  

When the indication of plea changed, it was said on your behalf by counsel who then represented you that everything was in issue in the case.  Happily, that course was abandoned, because in the hands of Mr Kelly, who subsequently was instructed to represent you by the Legal Aid Department, he took a course that allowed the trial to take a very short time.  On your behalf he made admissions of fact which, in effect, proved the structure of the prosecution’s case and identified by omission the very narrow issues of fact that remained. 

The result was that the evidence in your case commenced just before noon, and it had concluded with you giving evidence in the case by just after 4 o’clock in the afternoon of the same day.  Some pleas of guilty can take nearly that long. 

In all the circumstances, I am going to give you some credit for taking that course.  I cannot go outside the guidelines, but it does justify me, in my view, in all of the circumstances as I have outlined them, of passing a sentence at the bottom of the bracket. 

The discount for the plea of guilty is based on expediency.  The discount for your cooperation in the trial in presenting the issues properly and swiftly also attracts an allowance for matters of expediency. 

Accordingly, I shall pass a sentence of 20 years’ imprisonment.  It is, of course, a very long sentence for someone in your position, but there are many people in your position, in your circumstances around the world.  And of course it is only the very very few who resort to trafficking in dangerous drugs. 

As was mentioned in court yesterday, it is a salutary consideration that if you would have carried on with what you were doing and you had been caught taking these drugs over the border into the People’s Republic, with their system, or if you had come through a different transit point in South-East Asia, you may well have faced the penalty of death.

Please refer to CACC409/2009 for the relevant appeal(s) to the Court of Appeal.