HKSAR v. INDRA AGUS SETIAWATI

HCCC 318/2017

[2018] HKCFI 2618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 318 OF 2017

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

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COURT:

On 30 October 2018, the defendant was convicted after a trial before me of one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. It falls to me now to pass sentence upon her.

The Background

On 3 March 2017, an officer of the Customs and Excise Department was on duty at the Customs Examination Hall at the Hong Kong International Airport. His task was to examine incoming parcels. He decided to examine a parcel sent from Brazil to one Joe Willis at 2nd Floor, 21C, Block A, Tsui Yee Garden, Tai Wo Tsuen, Yuen Long, in Hong Kong. This was because an X-ray examination of that parcel had suggested there was something irregular in respect of its contents.

The parcel was opened and there was found inside 10 containers. A closer examination of these containers revealed that whilst inside there was what appeared to be some form of cosmetic paste, in the main body of the container there was cocaine concealed in a false bottom. Customs and Excise officers then decided to conduct a controlled delivery of the parcel to the addressee.

There was a failed attempted to do this on 6 March, but after a telephone call had been received on 7 March, it was agreed to deliver the parcel the next day, that is, 8 March.

On that day, a Customs officer disguised as a postman took the parcel to that building in Yuen Long. At the ground floor, the Customs officer met the accused. As he had approached the main gate to the building, she had exited the gate. He asked her whether she lived in the building and was told by her that she lived on the top floor. He indicated that he was going to the 2nd floor. She told him that she wished to collect the parcel and produced a colour photocopy of a passport in the name of Joe Willis who was the consignee of the parcel. She said, and her words were, she wanted to collect the parcel for her friend.

She also produced, when requested, a piece of paper with the waybill number of the parcel written on it, together with the name Joe Willis. She was asked to sign for receipt of that parcel on the waybill and after she did, it was handed to her. Immediately after that, she was arrested. At that time and under caution, she told the officer that she was receiving the parcel on behalf of a friend, that she did not know what was inside it.

At that time, she had in her possession a mobile telephone which was seized and subsequently examined by the Customs and Excise officers. Shortly after this, the defendant went, together with the Customs and Excise officers, to the rooftop of those premises. She had agreed to attempt to contact those persons who had asked her to collect the parcel. This was to enable to arrange for them to come to collect the parcel, and presumably, for the Customs and Excise officers to apprehend them. Unfortunately, this exercise bore no fruit. While she was able to make initial contact with two of those persons, very shortly after that, all contact ceased. Customs and Excise officers waited with her for a period of time, but ultimately resulted to abort the exercise.

She was then taken back to the Customs and Excise headquarters. A subsequent examination of the contents of the mobile phone which had been seized by the accused revealed, amongst other things, several photographs, a video recording, WhatsApp messages and various call logs. These were used in the course of a video-recorded interview which was conducted on the evening of 8 March with the defendant. It is noteworthy that the video recording which was contained in her mobile telephone demonstrated a person dismantling Thermos flasks, from which white powder is then removed, having been concealed in the base of those Thermos flasks.

Other photographs include those of packets of what appeared to be white powder on digital scales. There was also a passport photograph in the name of one Jerry Moyor which in turn had the exact same particulars as that of the passport photocopy of Joe Willis which she had handed to the Customs and Excise officer.

The defendant did not give evidence in the trial. It was her defence as seen in the video-recorded interview that she had no knowledge of the contents of the parcel she had collected, that she had been asked to collect it by persons that she knew. The jury, by its verdict, clearly accepted the prosecution’s case that the defendant was a knowing party to trafficking in a very substantial quantity of cocaine.

It had, as the jury were aware, an agreed value of $168,000.

Contents of the defendant’s mobile telephone would suggest that she had a more than passing knowledge of this operation. It is suggested on her behalf by Mr Donald that she had been used by others who are more deeply involved. I accept this submission up to a point, however, she was, as the jury clearly found, obviously a willing participant and the jury concluded that she knew full view that she was collecting a parcel containing dangerous drugs.

The Court of Appeal for many years has provided guidelines for the sentences of persons convicted of trafficking in dangerous drugs, and in this case, the dangerous drug cocaine. The cases of The Queen v Lau Tak Ming [1990] 2 HKLR 370 and the Attorney General and Rojas [1994] 1 HKC 342, are the first point of reference in respect of sentencing of this defendant. From these cases, it is apparent that the Court of Appeal guidelines would suggest that a person convicted after trial of trafficking in this quantity of cocaine would normally be sentenced to a term of imprisonment of 10 years. However, in the present case, the cocaine was imported into Hong Kong from Brazil. This would ordinarily attract an enhancement of the sentence to reflect this aggravating factor.

On behalf of the defendant, Mr Donald had submitted to me that I should not enhance her sentence by reason of the importation because there was insufficient evidence to establish that she knew that the drugs were imported into Hong Kong from overseas. I do not accept that submission. On the day that she took possession of the parcel, she signed an airway bill which stated clearly that the parcel had been sent to Hong Kong from Brazil. I am satisfied that, taken together with the circumstances of her involvement in this matter, that it was quite clear to her that this parcel had been brought into Hong Kong.

I am satisfied on the whole of the evidence that in the circumstances I must consider -- I withdraw that. I am satisfied that in the circumstances I must enhance the starting point for sentence for the aggravating factor of importation. In the circumstances, I believe that an additional sentence of 6 months’ imprisonment would be appropriate, given the quantity of the dangerous drugs involved, which would then have an initial starting point of 10 years and 6 months’ imprisonment.

Mr Donald has further submitted that I should give a discount to the defendant from this sentence because of the attempts that she made to arrange for those who were to collect this parcel to be apprehended. He has referred me to two cases, namely, HKSAR v Jardin Rodela Maningas, CACC 278/2011 (unreported) and HKSAR v Lo Sze Tung Stephanie, CACC 190/2017. In the former case, the Court of Appeal observed that the trial judge in that case gave no credit in sentencing for the defendant’s role in a failed delivery attempt of dangerous drugs. The judge had said at that time, and I quote: “It is true that you tried to assist the Customs but it came to nothing.”

In that case, the assistance provided did not result in the apprehension of the consignees, as is the case here. The assistance provided can fairly be said to be similar to that given by the defendant in this case. The Court of Appeal said in conclusion:

“It is important as a matter of principle to encourage arrested persons to assist in this way and in this case there was no empty offer of assistance but a practical engagement in the exercise, the failure of which did not in any way lie at the door of the applicant.”

Those observations are apposite in the instant case. In that case, a sentence of 20 years’ imprisonment was set aside by the Court of Appeal and a sentence of 18 years and 6 months substituted. The Court of Appeal in Lo Sze Tung Stephanie had similar observations to make. At paragraph 49 they said this:

“This particular form of assistance is frequently encountered in drug courier cases and the reason it is unsuccessful is because the recipient of the drugs does not attend the pre-arranged meeting place, perhaps because his suspicions have been aroused by delay in the courier contacting him or for some other reason. The assistance rendered by the co-operating defendant is, therefore, both limited and unfruitful. Notwithstanding the assistance possesses these features a discount is given in order to encourage other offenders to similarly cooperate with our law enforcement agencies.”

I do not consider in the circumstance of this case that quantification on a percentage basis is appropriate, in as much as the defendant has pleaded not guilty. I had considered the approach adopted by the Court of Appeal in Jardin to be a useful guidance. I believe that a reduction from 10 years and 6 months’ imprisonment to 9 years and 9 months’ imprisonment to reflect the assistance given is appropriate, and that is the sentence that I impose in this case.

On 31 July 2014, this defendant was convicted of an offence of breach of a condition of stay, contrary to the provisions of the Immigration Ordinance. She was sentenced to a term of 4 weeks’ imprisonment which was suspended for 3 years. By reason of her conviction yesterday, she is in breach of that suspended sentence and I must now deal with it.

In my opinion, the appropriate course is to activate that suspended sentence, but order that its term run concurrently with the term of imprisonment that I have imposed this morning.