HKSAR v. DIAN DWI ASTUTI AND ANOTHER

HCCC 92/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 92 OF 2015

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

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COURT: Defendants, you have both pleaded guilty to one charge of trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

1st defendant, you pleaded guilty to the 1st charge which involved 700 grammes of a mixture containing 411.9 grammes of heroin hydrochloride and 113.8 grammes of 6-monoacetylmorphine hydrochloride.

2nd defendant, the amount of drugs involved was 733 grammes of a mixture containing 487.2 grammes of heroin hydrochloride and 94.6 grammes of 6-monoacetylmorphine hydrochloride.

These offences were committed on 15 October 2014 at the Shenzhen Bay Control Point in the New Territories in Hong Kong.

On that day just shortly before noon, Customs officers intercepted a 7-seater private car at the Customs Clearance in Shenzhen Bay leaving from Hong Kong intending to go towards the Mainland. You both were passengers of that car.

A search was conducted upon you both and dangerous drugs wrapped by plastic sheets was found in a sanitary napkin underneath your underpants. You were then taken to Tuen Mun Hospital where upon examination a further packet containing the drugs was removed from the vagina of each of you.

At the time of seizure, the estimated street value of the dangerous drugs found on you, 1st defendant, was in the sum of $561,400; and on the 2nd defendant, $587,866.

You were interviewed under caution in a video-recorded interview, and as for the 1st defendant you said that a person by the name of “Jack” had given you the drugs and he had, in effect, paid for your air tickets from Indonesia to Kuala Lumpur, then from Kuala Lumpur to Hong Kong. You would receive a reward of US$2 for delivering a gramme of the substance. You were to deliver these drugs to Lo Wu in the mainland and upon arrival there you will be further contacted.

As for the 2nd defendant, you travelled together with the 1st defendant from Indonesia to Kuala Lumpur then to Hong Kong. The air ticket was provided by the 1st defendant and the drugs were given to you by the 1st defendant in Malaysia. You were told to conceal them inside your underpants and in your vagina. You had been promised a reward of US$800. You had no idea where you would go or whom you would contact in the mainland.

From the documents seized from you both, you had flown from Jakarta to Kuala Lumpur on 12 October, then from Kuala Lumpur to Hong Kong on the 14th and were to have returned to Jakarta on 17 October.

1st defendant, your counsel Mr Neil Mitchell has made very thorough mitigation on your behalf, and for the 2nd defendant, Mr Sadhwani, he has also mitigated thoroughly on your behalf. 

I shall deal with you both where there are common areas of background.

1st and 2nd defendants, you are both from Indonesia and hold Indonesian passports. It is my understanding that you are related and are cousins to each other, although the 2nd defendant calls the 1st defendant her aunt. Both defendants have a clear records.

I turn first to deal with the 1st defendant. First defendant, you are aged 38, are a divorcee, and have studied to senior middle school. You worked as a sales lady in Indonesia and earned approximately HK$600 per month. You also have two daughters aged 19 and 10. In Indonesia, you resided with your daughters and your parents who are aged 64 and 54 respectively.

Mr Mitchell has highlighted in his mitigation the fact that you were, used by a man whom you believed you were in a genuine courtship with. That man was named “Jack”, and he was from Africa but lived in Malaysia. You met through the social media in January 2013. Jack had persuaded you to take these goods which you then realised were drugs from Kuala Lumpur to China. In your misguided belief, that Jack’s feeling towards you were genuine, you agreed to do so. Jack had made the promises of the reward to you, and had paid for all the tickets.

As for the 2nd defendant, you are aged 22. You are married and have a three-year-old child. You have attained Form 6 education in Indonesia and worked as a sales lady in Indonesia earning approximately 1,700 to 2,900 dollars per month. Mr Sadhwani tells me that since your arrest, your husband has indeed left you and your child is now looked after by your family.

As regards the mitigation common to you both, I accept that both of you were couriers of these drugs and were used by this man Jack to take these drugs from Kuala Lumpur to China. As a result of the commission of this offence, as unfortunately with people like yourselves, your loss in your personal future life is great. You will lose many years with your family, bringing up your children and looking after your elderly parents or loved ones.

The consequences as you now know for trafficking in drugs is very, very serious. Most if not all of you are involved with trafficking because of difficult personal or financial circumstances, and you are preyed on by these traffickers to embark on this journey - very serious criminal enterprise. Unfortunately for you, when you are caught the consequences to you are extreme.

Mr Mitchell and Mr Sadhwani has rightly referred to the case of The Queen v Lau Tak Ming which lays down the sentencing guidelines for trafficking in heroin hydrochloride. The other drug involved in this case is monoacetylmorphine hydrochloride and that is to be treated as heroin.

In Charge 1, therefore, the total narcotic is 525.7 grammes of heroin. In Charge 2, the total narcotic is 581.8 grammes of narcotic, which is heroin hydrochloride. In both of these charges, the bands laid down in Lau Tak Ming for sentencing of these amounts is between 15 to 20 years’ imprisonment after trial for amounts between 400 to 600 grammes.

For both of you, there was certainly an aggravating factor as considered in Abdallah Anwar Abbas in that you were bringing these drugs from Hong Kong to China - in fact, you brought them from Kuala Lumpur to Hong Kong and intending to bring them to China - and that warrants an enhancement from the starting point.

What is clear to me here, defendants, is that you knew that you were embarking on a trade of trafficking in dangerous drugs. You took two separate flights from Indonesia to KL, KL to Hong Kong. You were then travelling to China by road. You were, in a matter of four days, going to be going into four different countries. Your whole purpose of this trip was clearly just to deliver these drugs from Kuala Lumpur to China and this was just a stopover turnaround trip. I accept you are not the prime mover but you were certainly a very important courier in taking these drugs and concealing these drugs in your underpants and your vaginas.

1st defendant, on the 1st charge of trafficking to which you have pleaded guilty and been convicted, had you been convicted after trial the appropriate sentence would have been one of 18 years’ imprisonment.

In view of the international element and following the guidelines which have been considered in HKSAR v Chung Ping Kun CACC 85/2014, I enhance that starting point by one year. Therefore, the total sentencing point had you been convicted after trial would have been 19 years’ imprisonment.

There are no further mitigating factors, but your strongest mitigating factor of a plea of guilty, and in those circumstances the usual discount of one-third will be warranted and that sentence shall be reduced to one of 12 years and 8 months’ imprisonment to which you shall so serve.

In respect to the 2nd defendant, the amount of drugs was 581.8 grammes. Had you been convicted after trial, the appropriate sentence would be one of 19 years and 6 months’ imprisonment. Again, the aggravating factor here is the international element to which that the starting point I would increase by one year given the amount of drugs. The sentencing point, therefore, will be one of 20 years and 6 months’ imprisonment. Similarly to D1, save for your strongest mitigating factor which is your plea of guilty, there are no other mitigating factors. I shall give you the usual one-third discount and you shall be sentenced to 13 years and 8 months’ imprisonment.