HKSAR v. MUJIATI

DCCC 268/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 268 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  This case involves an undercover police officer posing as a customer in the Boracay Pub & Disco in Luard Road, Wanchai. The dates of the first three charges are 17 November and 8 December last year.  Both those dates fall on a Sunday.  The undercover officer met the defendant in the disco whereupon the defendant offered to sell the undercover officer drugs.  She sold the officer some ketamine.  On each occasion, it cost $100.  The defendant was arrested not long after the second purchase on 8 December.  When she was arrested, she was also searched, and the drugs of Charge 3 were found on her person.  Clearly, they were intended for sale.

3.  Charge 4 involves dangerous drugs subsequently found in her home when it was searched.  Again the drugs were intended for sale.

4.  The facts of this case are that straightforward, and the defendant has admitted them. 

5.  The dangerous drugs of Charges 1 and 2 involve a very small quantity of ketamine.  In Charge 3, there are two types of drugs: 1.03 gramme of ketamine and 16 capsules containing a solid containing 2.63 grammes of a drug considered to be similar to “Ecstasy” but milder and less potent.  In Charge 4, again there was ketamine and a total of 2.6 grammes of ketamine.  Alongside the ketamine, the police found 320 capsules containing a solid containing 59.08 grammes of the same drug found in the capsules of Charge 3.

6.  The defendant is 39 years old and in Hong Kong has a clear record.  She is an Indonesian national.  Her clear record has some significance because she has been in Hong Kong for 14 years. She has been working in Hong Kong as a domestic helper. 

7.  I have been told that in September or October last year, she got into financial difficulty which led to the commission of these offences.  She was led astray by others, in particular another Indonesian woman, and tempted to sell dangerous drugs for a financial benefit.  She got into financial difficulty for several reasons.  At about that time, she was told that her father in Indonesia was ill and needed a kidney operation.  Her family asked her to send home HK$20,000.  And to compound this financial burden, she was at about that time terminated from her contract.  The timing was such that her employer could avoid long-term service payment.  To stay in Hong Kong, she had to find another domestic helper contract, and it cost her about $9,000, a payment she had to make to an employment agency to succeed.  While she waited for this job to materialise and finalise, she had to support herself by waiting it out in Macau.

8.  Her best mitigation is her plea of guilty today. I accept her explanation as to why after so many years here in Hong Kong, she got into trouble and committed these offences. 

9.  The authorities are clear.  There are guidelines where trafficking ketamine is concerned.  Specifically, where between 1 to 10 grammes of ketamine is trafficked, that would attract a starting point of between 2 to 4 years’ imprisonment, I refer to Secretary for Justice v Hii Siew Cheng [2008]3 HKC 323.  

10.  There is no guideline for the second drug in this case.  As it is related to “Ecstasy”, I will set out the guidelines for trafficking “Ecstasy”.  Where between 50 and 300 grammes of “Ecstasy” is trafficked, an appropriate starting point would be between 6 to 9 years’ imprisonment, again that comes from Secretary for Justice v Hii Siew Cheng [2008]. 

11.  But the drug in these capsules is not “Ecstasy”.  The facts set out what is agreed, and the drug has a lower potency than “Ecstasy”.  It is a milder stimulant than “Ecstasy”.  I do not know how much lower or how much milder.  I do not have any assistance from a doctor or a psychiatrist or any authorities.  It is a relatively new drug on the drug scene in Hong Kong and if it makes a frequent appearance, I suggest the Department of Justice obtain a report about this drug as compared to “Ecstasy”. But as I have no evidence to suggest it is nearly as serious as “Ecstasy”, I will lower what the starting point for “Ecstasy” would be significantly.

12.  Charge 4 has the most amount of drugs and involves a cocktail, more than one type of drug.  If it was only the ketamine, the starting point would be about 2 years.  If it was only the capsules and if the drug was “Ecstasy”, it would be about a 6 years’ starting point.  But because of the lack of knowledge available today, I will take a much lower starting point.

13.  For the drug related to “Ecstasy”, because its quantity is much more than the ketamine, I will consider that drug first.  I will take a starting point of 2 years for that amount of drugs and add 1 year to reflect the ketamine.  For Charge 4, I take a starting point therefore of 3 years’ imprisonment.

14.  As with all charges, I take into account the facts of the case, the mitigation put forward, defendant’s plea, the fact she previously had a clear record as well as the quantity of drugs and the type of drugs involved.  I will also take into account the totality principle. 

15.  After considering all of those factors, for Charge 1, I will take a starting point of 2 years’ imprisonment.  Charge 2, I take a starting point also of 2 years’ imprisonment.  Charge 3, I take a starting point of 2 years and 6 months’ imprisonment.  Charge 4, as I have said, I take a starting point of 3 years’ imprisonment. 

16.  Defendant, you have pleaded guilty.  You are entitled to a discount of one-third from those starting points.  Therefore, for Charge 1, after this one-third discount, you are sentenced to 16 months’ imprisonment.  For Charge 2, you are also sentenced to 16 months’ imprisonment.  Charge 3, you are sentenced to 20 months’ imprisonment.  Charge 4, you are sentenced to 24 months’ imprisonment.

17.  Charges 2 and 3 were committed on the same day and they will run concurrently.  However, I will also order that 2 months of Charge 1 and 2 months of Charge 3 be served consecutively to Charge 4.  That is a total sentence of 2 years and 4 months.  Do you understand that sentence?

DEFENDANT: Understood.