HKSAR v. SRI BIDAYATI

DCCC 154/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 154 OF 2011

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Reasons for Sentence (1^st Defendant)

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Charges

1.  The 1^st Defendant (D1) pleads guilty to 4 counts of Trafficking in Dangerous Drugs.  The 2^nd Defendant (D2) pleads guilty to 1 count of Trafficking in Dangerous Drugs. 

2.  For D1, the drugs involved are 0.46 gramme of a powder containing 0.28 gramme of cocaine (Charge 1); 0.35 gramme of a powder containing 0.22 gramme of cocaine (Charge 2); 2.35 grammes of a powder containing 1.26 grammes of cocaine (Charge 3); and 1.71 grammes of a powder containing 0.95 grammes of cocaine; 16.81 grammes of a powder containing 13.72 grammes of ketamine; 24 tablets containing 0.96 gramme of Ketamine and 0.05 gramme of methamphetamine; 56 tablets and 3 tablet fragments containing 5.5 grammes of 3,4-methylenedioxymethamphetamine; and 1.9 grammes of a powder containing 0.84 grammes of 3,4-methylenedioxymethamphetamine (Charge 4).

3.  For D2, the drugs involved are 0.35 gramme of a powder containing 0.22 gramme of cocaine (Charge 2).

4.  D2 was sentenced on 2^nd August 2011 for imprisonment of 1 year, taking into account all the mitigating factors and the special circumstances on the papers which justified a lenient view to be taken of the facts.

5.  In 3 undercover operations conducted on 19^th August 2010, 24^th August 2010 and 12^th October 2010 respectively, D1 sold to Superintendent Spencer cocaine of quantities described under charges 1 to 3 in paragraph 2 above.  D2 acted as the courier in the transaction on 24^th August. 

6.  After arrest, D1 brought police officers to her residence and more drugs were found in the vicinity, including also Ketamine and Ecstasy in quantities as described under charge 4 in paragraph 2 above. 

7.  In subsequent recorded interviews, D1 admitted selling the drugs to Superintendent Spencer and the drugs found nearby her place of residence were belonged to her for selling.     

8.  In Attorney General v Chang Chen Liu-sa [1995] 1 HKCLR 69, the Court of Appeal held that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 were applicable to trafficking in cocaine. It follows that for trafficking in a quantity of up to 10 grammes of cocaine, the sentence should be 2 to 5 years’ imprisonment.

9.  The Court of Appeal had laid down a tariff for the sentence of trafficking in ketamine or ecstacy in Secretary for Justice v. Hii Siew Cheng [2009] 1 HKLRD 1.  For quantity of ketamine or ecstacy from 10 to 50 grammes, the range of sentence shall be 4 to 6 years imprisonment. 

10.  Mr. Mohammed, counsel for D1, said in mitigation that D1 came to Hong Kong as domestic helper in 2003, she is now 32 years old and single.  As her employer migrated to the United States in 2009, she was unemployed since then but she applied for asylum here and stayed in Hong Kong under recognizance.  Her living in Hong Kong had been sustained by her friend.

11.  She felt very lonely here in Hong Kong and was introduced to drugs by her friends.    In order to pay for her livings and drugs, she trafficked in dangerous drugs but she needed to pay a portion of the earnings to another trafficker.

12.  She is now very remorseful and she has been cooperative since after her arrest.

Sentence

13.  Mr. Mohammed made the calculation and submitted that the overall quantities of the drugs in question include 2.71 gms of Cocaine, 14.68 gms of Ketamine and 6.34 gms of Ecstacy.

14.  Drug trafficking is a very serious offence.  There are tariffs laid down by the Court of Appeal on sentence and this court is in no position to deviate from it unless there are exceptional circumstances. There is nothing exceptional in this case.  The only valid mitigating factor is really her guilty plea.

15.  For Charges (1), (2) and (3), as the quantity of Cocaine involved in each case is small, I adopt a starting point of 2 years’ imprisonment for each charge and reduce it to 16 months’ imprisonment for each charge taking into account her guilty plea.

16.  For Charge (4), the quantity of cocaine involved is insignificant when compares to the quantities of the Ketamine and Ecstacy.  I would adopt a global approach in considering the sentence and neglect the cocaine involved.  I adopt a starting point of 4 ½ years’ imprisonment for Charge (4) and reduce it to 36 months’ imprisonment taking into account her guilty plea.  

17.  In consideration of the principle of totality, I find it appropriate to order the sentence of all charges to be served concurrently.