HKSAR v. WIJI LESTARI

DCCC 646/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 646 OF 2013

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REASONS FOR SENTENCE

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Introduction

1.  The defendant pleads guilty today to two charges of trafficking in a dangerous drug, respectively Charges 1 and 2 of the Charge Sheet, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and also one charge of offering to traffic in a dangerous drug, which is Charge 3, contrary to section 4(1)(b) and (3) of the same ordinance. 

The facts

2.  Shortly stated, the facts which the defendant agrees, are as follows:-

(a) On 4 May 2013, the defendant sold to PW1 who, unbeknown to her, was an undercover police officer methamphetamine hydrochloride, commonly known as “ice”. The defendant told PW1 that she was selling him 1.5 grammes of “ice” and received from him a total of $1,600. However, what the defendant actually supplied to PW1 was 0.56 gramme of a crystalline solid containing 0.56 gramme of methamphetamine hydrochloride. (Charge 1)

(b) On 7 May 2013, the defendant sold “ice” to PW1 again. This time, the defendant had agreed to sell three grammes of “ice” to PW1 and she received a total of $2,700 from him. However, what she in fact supplied to him was 2.5 grammes of a crystalline solid containing 2.42 grammes of methamphetamine hydrochloride. (Charge 2)

(c) On 9 May 2013, the defendant agreed to supply PW1 with “ice” which was worth $10,000 and she received $7,000 from him as deposit. However, she then disappeared without supplying any drugs to PW1. (Charge 3)

(d) The defendant was subsequently arrested on 22 May 2013. Under caution, she said that she bought the dangerous drugs from a third person who she called “Brother” and resold them to PW1 at a profit. In particular, she said that she committed the first offence because of financial difficulties. She said also that on the third occasion, as she was unable to contact “Brother” and she was in financial difficulties, she kept the money and fled.

Defendant’s antecedent

3.  The defendant was born in Indonesia and is now aged 25.  She has a previous conviction in Hong Kong for breach of condition of stay in 2010 for which she was sentenced to 4 weeks’ imprisonment suspended for 3 years.  She was unemployed at the time of arrest for the present case.  She is now remaining in Hong Kong on recognizance (Form 8).

Mitigations

4.  Mr Cheung who acts for the defendant told me that the defendant’s mother passed away when she was less than one month’s old.  Although the defendant’s father was well-off in Indonesia, she did not get along well with her step-mother and that was the reason why she came to Hong Kong to work as a domestic helper in 2009.

5.  As regards the background of the present case, Mr Cheung said that the defendant was an abuser of “ice” which she got from “Brother”.  However, “Brother” was angry with her as she had rejected his advances.  Therefore, when “Brother” was caught by the Police he gave the defendant’s telephone number to the Police in return for his being released.  It was the information from “Brother” which eventually led to the defendant committing the present offences.  Mr Cheung said the defendant was being “trapped”.  It was the first time that she supplied drugs to other people and she had never done that before.  

6.  I told Mr Cheung that I had difficulties accepting what he said about “Brother” which was at variance with the agreed Summary of Facts.  I asked whether Mr Cheung required a Newton Enquiry.  After taking instruction, Mr Cheung informed that he would not ask for a Newton Enquiry.  Mr Lee for the prosecution said that he did not accept what Mr Cheung said about “Brother”.  In the circumstances, I can place no weight on what Mr Cheung said about “Brother” for sentencing purpose. 

7.  As Mr Cheung mentioned that the defendant was “trapped” into committing the present offences, I asked Mr Cheung whether he was relying on “entrapment” as mitigation.  Mr Cheung confirmed that he was not.  That concession was, with respect, a realistic one having regard to the relevant legal principles summarized by Stock J (as his lordship then was) in R v Siu Yuen Fong & Anor [2002] 4 HKC 699, at para 29 to 30 of that judgment.  I note in particular that there was nothing to suggest in the agreed Summary of Facts that there was any encouragement or pressure of any kind exerted by PW1 on the defendant.  PW1 had only asked the defendant whether she could provide him some “stuff” without mentioning what the “stuff” was.  The defendant then replied that she could sell “ice” to PW1 and informed him the price was $900 per gramme.  It is also an admitted fact that the defendant committed the offence the subject matter of Charge 1 because she was in financial difficulties.  Therefore, it is evident that if the offence had not been committed in respect of PW1 it would have been with others. 

Sentence

8.  Having regard to the quantities of “ice” involved in Charges 1 and 2 and the tariff laid down in the judgment of the Court of Appeal in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, which was later explained in HKSAR v Capitania Edwin F also known as Capitania Edwin, CACC 28/2004 (unreported), I adopt 3 years’ imprisonment as the starting point for Charge 1 and 3½ years as the starting point for Charge 2. 

9.  Having considered the mitigation made by Mr Cheung on behalf of the defendant, in my view the only valid mitigation factor is the timely plea of the defendant.  After deducting the customary one-third discount for plea, the sentence on Charge 1 is 24 months’ imprisonment and the sentence is on Charge 2 is 28 months’ imprisonment. 

10.  As regards Charge 3, offering to traffic in a dangerous drug, there is no tariff.  I note that the agreed price of $10,000 suggests that PW1 expected to obtain about 10 grammes of “ice” from the defendant, using as the yardstick $900 a gramme which the defendant had told PW1 was the price of the dangerous drug.  Nevertheless, I cannot ignore the fact that the defendant on the first and the second occasions supplied PW1 with fewer quantities of “ice” than she said she did.  I also note that no exact quantity of “ice” had been specified between PW1 and the defendant on the third occasion, that the defendant had obtained a deposit of $7,000 from PW1 and that in the event no “ice” was in fact supplied. 

11.  In relation to this charge, I have derived some sentencing guidance from the judgment of the Court of Appeal in R v Lee Kwok Wing, CACC 669/1995 (unreported), on p 5 of the judgment, which is also a case on offering to traffic in a dangerous drug.  I note that the reason the defendant gave for her failing to supply drug to PW1 on the third occasion was that she had not been able to contact “Brother”.  Therefore, the implication is that had she been able to procure some drug, she would have supplied it to PW1.  In my judgment, the defendant should be sentenced on the basis that she made an offer to supply an imprecise but substantial quantity of drugs which she did not have and which she might not ever have been able to procure.  This is an approach which, I understand, Mr Cheung does not disagree. 

12.  In all the circumstances, I adopt 4 years’ imprisonment as the starting point for Charge 3.  After deducting one-third for the plea, the sentence is 32 months’ imprisonment.

Totality

13.  I note the submission of Mr Cheung that the time gaps between the offences were short and that the transactions related to the same parties and the same type of dangerous drug.  However, these facts alone would not make the offences “one episode of criminal activity”.  In my judgment, the incidents relating to Charges 1, 2 and 3 were discrete and separate offences and should in general be sentenced as such. 

14.  Having regard to the principle of totality and the guidance provided by the Court of Appeal in the recent case of HKSAR v Pau King Kong, CACC 465/2012 (unreported), at para 28 to 40, I order that 6 months of the sentence on Charge 2 to run consecutively to the sentence on Charge 1 and 10 months of the sentence on Charge 3 to run consecutively to the sentences on Charge 1 and Charge 2.  Therefore, the overall sentence is (24 + 6 + 10), that is, 40 months’ imprisonment, a sentence which, by standing back, I am satisfied reflects the overall culpability of the defendant.