CRIMINAL CASE NO. 430 OF 2011
COURT: You have been found guilty of trafficking in 287.95 grammes of cocaine.
This is not the first case that I have tried recently in which an asylum seeker has been accused of an extremely serious offence in the High Court. What I find disquieting about this particular case is that for about a year before your arrest, you had been living at an address which is obviously not the address recorded on your Form 8 recognisance issued by the Immigration Department, a document which is supposed to act as an identity document for those who are not ordinarily entitled to remain in Hong Kong but for their status as refugees or torture claimants whilst their claims are processed.
What also concerns me is that on the evidence I have heard from your own mouth, you have managed to remain in Hong Kong as a torture claimant simply because at the expiration of your contract as a domestic helper, you could not face returning to your domestic situation in Indonesia. Accordingly, you were allowed to remain in this Territory for a considerable period of time on what appears to be a completely false basis as a torture claimant, living at an address which appears to have been unknown to the Immigration Department, unable to work, but free to commit an extremely serious offence.
Hong Kong prides itself, as any civilised territory does, on being a sanctuary for genuine refugees and torture claimants, but it seems to me that the system is being abused when even a domestic helper can become a torture claimant simply because she does not feel like going home, and it is a cause for grave public concern when their claims are taking so long to be investigated that they are able, during that time, to resort to serious crime such as this.
As I have said, this is not the first case of a defendant in this situation resorting to such serious crime in the community which is being prevailed on to provide them with sanctuary.
If the real reason for your claim to remain in Hong Kong had been made clear to those tasked with investigating such claims as it has been made abundantly clear to me in your evidence, you would have been promptly put on an aeroplane back to Indonesia, instead of being allowed to float around in Hong Kong, living at an address unknown to the Immigration Department, the details of which even you could not give, and being drawn into a dubious underworld of drug trafficking with others who are also not ordinarily resident in Hong Kong, or so it would appear.
Had the real reason for your claim to remain here been made clear, you would not have been before me today, because you would not be here.
I have considered whether your purported status in Hong Kong aggravates the sentence that I must pass. If you are a refugee or torture claimant from another country, you come here and live a law-abiding life whilst your application is processed. You do not take the opportunity, whilst you are being sheltered and fed, to traffic in half a million dollars’ worth of cocaine.
However, in the absence of any stated principle on this point from the Court of Appeal, I have decided that I shall not add to your sentence for this factor. Nevertheless, I am going to order that a copy of your evidence, together with these sentencing remarks, be sent through the Department of Justice as prosecution to the organisation that is processing your torture claim.
The sentencing band applicable for 287.95 grammes of cocaine is 12 to 15 years’ imprisonment for between 200 and 400 grammes of narcotic.
In my judgment, the appropriate starting point for sentence in your case is one of 13 years’ imprisonment. Had you pleaded guilty and offered to assist the authorities in tracking down the others involved in the trafficking of these drugs, you would have received a substantial discount on that sentence.
Having protested your innocence and now been found guilty, you are entitled to no discount from that sentence.
You will go to prison for 13 years.
Please refer to CACC264/2012 for the relevant appeal(s) to the Court of Appeal.