HKSAR v. Suwanti

HCCC 406/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 406 OF 2012

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

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COURT: The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 0.25 kilogramme of a solid containing 0.20 kilogrammes of cocaine.

The facts of the case, which were largely admitted and exhibited as P32, were that on 22 March last year a registered airmail parcel was mailed from Argentina, addressed to a Miss Hidayah in Sheung Shui, New Territories, with a contact phone number on the parcel.

On 31 March last year a very astute Customs Officer CO 8766, opened the parcel and found therein some white colour powder which tested positive for cocaine. The parcel was disguised in such a way in that it contained photo frames and the cocaine was hidden, secreted inside the packaging of the parcel.

The Customs officers then decided to launch this investigation and on 2 April last year a Customs inspector then telephoned the telephone number which was exhibited on the parcel. The telephone calls were received by the defendant. The defendant claimed that she was the person named on the parcel, a Miss Hidayah, and arranged to go to the post office to collect the parcel. The defendant was told that she had to bring along her passport.

On the afternoon of 2 April the defendant went to the Shek Wu Hui Post Office in Sheung Shui and collected the parcel. After displaying an expired passport belonging to the person called Hidayah, the defendant signed for the parcel and took the parcel and left the post office. She was stopped and arrested by Customs officers outside the post office.

After her arrest, the expired passport in the name of Hidayah was seized from the defendant. Also seized was a name card of an Indonesian shop selling Indonesian food stuffs and also mobile phones and SIM cards. Also, when stopped, the defendant was in possession of a Form 8 issued by the Immigration Department which testifies to the fact that she is on a recognisance and that she is a torture claimant.

Photographs were taken of the exhibits. The defendant was subsequently interviewed on video and the defendant did not challenge the admissibility of the video-recorded interview. In the video-recorded interview, she denied knowledge of the contents of the parcel and claimed that it was her live‑in boyfriend, Samuel, an African person, who had directed her to go and collect the parcel and who had asked her to supply the name of her friend, Hidayah, and also the address that was exhibited on the parcel.

The drugs were subsequently examined by a Government Chemist and the Government Chemist determined that the drugs were 0.25 kilogrammes of a solid containing 0.20 kilogrammes of cocaine. According to the Admitted Facts, the street value of the cocaine, according to the Customs and Excise Department, in March 2012, was HK$286,000.

The defendant also admitted that she arrived in Hong Kong on 11 June 2009 using her Indonesian passport and has remained in Hong Kong since then.

MR GROUNDS: Sorry, my Lady, was that Miss Hidayah who arrived at...

COURT: I am sorry, yes.

MR GROUNDS: Just to correct yourself, she...

COURT: Not the defendant.

MR GROUNDS: I think she said in evidence she came in 2008, my Lady.

COURT: Yes. Thank you very much.

I have correctly been corrected by counsel, Mr Grounds, that in the Admitted Facts it is admitted that Hidayah arrived in Hong Kong on 11 June 2009, using her Indonesian passport, the expired passport which was exhibited in court as Exhibit P8, and is still in Hong Kong.

The defendant herself, when she gave evidence, said that she came to Hong Kong to work as a domestic helper and she came to Hong Kong in 2008. She ceased working as a domestic helper in 2011 and had been unemployed up to the time of her arrest.

The trial had begun last Friday, after both counsel had very diligently put their heads together and admitted most of the facts. Credit should be given to the defendant for that because most of the evidence was not challenged, including the evidence which the prosecution was not able to call as certain witnesses because of their unavailability in the early part of the trial. The defence, without hesitation, agreed to admit the evidence of those officers.

Also, to the defendant’s credit is that although she had pleaded not guilty at the early part of the trial, she chose not to maintain that stance under oath and she admitted to her guilt in cross-examination under oath.

It is also very fairly put by Mr Grounds that the defence had, from a very early date, agreed, or rather intimated to the prosecution that they are willing to admit most of the facts and, therefore, it was clear to the prosecution at a very early stage that they need not call many of the witnesses.

What has also emerged during the trial was the defence had also tried to assist the prosecution because prior to the beginning of the trial, the defence solicitor had written to the prosecution advising them that the person called Samuel, who was the live‑in lover of the defendant, had visited the defendant while she was held in custody at Tai Lam Prison. They supplied the full name of this person and also two telephone numbers of this person to the Customs officers.

Unfortunately, as a Customs inspector who gave evidence disclosed to the court, they did follow up on this and the Correctional Services Department had the passport number of this person, including the full name. But, unfortunately, there was no date of birth, so they were unable to get any confirmation from the Immigration Department as to this person’s whereabouts, whether he had left Hong Kong or is still in Hong Kong because without the date of birth it is not possible to follow up.

But it still does not take away from the credit to the defence that they did try to assist the prosecution as best they could.

Trafficking in a dangerous drug is a very serious offence and very often drug traffickers use people to do their evil act for them. In this case, I do accept Mr Whitehouse’s mitigation that the defendant was used by her boyfriend, this person called Samuel, to carry out part of this evil deed.

It is sad but an unfortunate fact of life that people like the defendant are caught within this web, whether for reasons of emotion or monetary, for all sorts of reasons, people like the defendant are used by drug traffickers.

The courts have recognised the seriousness of this offence, the insidious nature of this offence and have laid down sentencing guidelines so that a sentencing court can consider and determine a reasonable sentence.

As Mr Whitehouse correctly pointed out the sentencing guideline for cocaine, the tariff has recommended a sentence of 12 years because the Court of Appeal in the case of Lau Tak Ming has laid down the guideline that for trafficking in 200 to 400 grammes the guideline sentence should be between 12 to 15 years. Since it is 200 grammes, the guideline sentence would be about 12 years.

Although Mr Whitehouse correctly pointed out that it is not a mathematical exercise but it is still within the court’s discretion to sentence, to come to a proper sentence. However, the court still has to pay attention to the guideline sentence laid down for the quantity of the drugs.

The proper sentence which I would adopt as a starting point in this case, following the guideline, would be 12 years’ imprisonment. However, as I have said, in this case, although the defendant did not plead guilty at the very beginning of the trial, she still merits a reduction of sentence because, as I have said, she had, from the very beginning, informed the prosecution through her counsel that she will not be challenging a large part of the evidence of the prosecution.

This case was originally set down for eight days but because of the defence conduct of the trial, the trial was actually reduced to about three days. So the defence has saved a lot of the court’s time.

Also to her credit is the fact that she decided not to maintain her plea of not guilty and lie under oath and she came clean under oath which, as I have said to members of the jury just now, is not a very frequent occurrence in these courts.

It is also to the defendant’s credit that through her instructing solicitors she did try her best to assist the prosecution in giving the information to the Customs officers about Samuel but unfortunately it led to nought. But that should not detract from the fact that she did try to help.

On this occasion, I find that it would be reasonable, in the circumstances, to discount the sentence despite her late plea. Because of all these mitigating factors, which are apparent, and I have already said them, I will give the defendant a reduction in her sentence to one of 9 years’ imprisonment, which is a 25 per cent discount.

The fact is that despite all the mitigating factors, a strong message has to be sent out to people who decide to assist drug trafficking, as the defendant did, that they have to pay a very severe sentence in Hong Kong if they do decide to assist, for whatever reason, because our authorities in Hong Kong are fighting a loosing daily battle against drug trafficking and the spread of drugs in our community, particularly in the community of the young people in Hong Kong.

So the defendant will go to prison for 9 years.

Please refer to CACC245/2013 for the relevant appeal(s) to the Court of Appeal.