HKSAR v. WIJI LESTARI

CACC 332/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 332 OF 2013

(ON APPEAL FROM DCCC NO. 646 OF 2013)

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J U D G M E N T

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1. The applicant was convicted on her own plea of two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and one charge of offering to traffic in a dangerous drug, contrary to section 4(1)(b) and (3) of the same Ordinance. The quantity of narcotic for sentencing purposes was 0.56 grammes of methamphetamine hydrochloride (commonly known as “Ice”) in the first charge; and 2.42 grammes of “Ice” in the second charge. As for the third charge, the quantity of “Ice” in which the applicant had offered to traffic was not specified.

The facts

2. On 24 April 2013, PW1, a police superintendent acting under cover, contacted the applicant by telephone and asked her whether she could provide him with some “stuff”, without mentioning what that “stuff” was. In response, the applicant said that she could sell PW1 some “Ice” at HK$ 900 per gramme.

3. On 3 May 2013, PW1 contacted the applicant again and asked whether she had any “stuff”.  She replied that she did not have any at the time but that she could get some from her boss.  PW1 accordingly requested 2 grammes.  A meeting was arranged in Wan Chai at which the applicant said the price would be HK$1,800 and requested PW1 to pay a deposit of HK$500 first.  This he paid.

4. A day later, a further meeting was arranged at which the applicant said she could only obtain 1.5 grammes of the drug.  Accordingly, the price was adjusted for what was said to be 1.5 grammes of “Ice”.  PW1 paid over the balance of the money to the applicant and was given in return what turned out to be 0.56 grammes of “Ice” (Charge 1).

5. On 7 May 2013, PW1 called the applicant again and this time said he wanted to buy 3 grammes of “Ice”.  The applicant said that the price would be HK$2,700 and requested a deposit of HK$2,000.  A meeting took place later that day in Langham Place at which PW1 paid over the deposit to the applicant.  Later that evening, also in Langham Place, the applicant gave PW1 2.42 grammes of “Ice” and PW1 paid over the balance of the money (Charge 2).

6. On 8 May 2013, PW1 again called the applicant and asked how much “Ice” he could obtain for HK$10,000.  The applicant said she would first need to collect the money and her boss would go to Macao to collect the drugs.  Later that evening, a meeting took place again in Langham Place at which the applicant asked for a HK$7,000 deposit.  PW1 paid the money over and the applicant said she would need about an hour to fetch the drugs.  However, the applicant then disappeared and had no further contact with PW1, to whom she had not of course supplied any “Ice” (Charge 3).

7. On 22 May 2013, the applicant was arrested and on 28 May identified by PW1 at a formal identification parade.

8. The street value of the drugs in Charge 1 was HK$503, whereas the value of the drugs in Charge 2 was HK$1,350.

The sentence

9. The judge adopted starting points of 3 years’ and 3 and a half years’ imprisonment respectively for Charge 1 and Charge 2.  He adopted 4 years’ imprisonment as the starting point for Charge 3.  Allowing a full one third discount for the pleas of guilty, he reduced the sentences for the three charges to 24 months, 28 months and 32 months respectively.  He then ordered six 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 Charges 1 and 2, thus making a total sentence of 40 months’ imprisonment.

The applicant’s antecedents

10. The applicant is Indonesian and was aged 25 at the time of sentence.  She has a previous conviction recorded on 22 November 2010 for breach of condition of stay for which she was given four weeks’ imprisonment suspended for 3 years.  She was at the time of the offences permitted to be at liberty in Hong Kong by virtue of a recognizance issued by the Director of Immigration.

11. Although she was in breach of a suspended sentence at the time these offences took place, the judge does not appear to have activated it, or any part of it.

Consideration

12. This was a slightly unusual set of facts on which to sentence.  In particular, while Charges 1 and 2 were governed by the tariff guidelines in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, the judge acknowledged that there was no tariff for offering to traffic in a dangerous drug.  Nevertheless, he was satisfied that had she been able to contact her boss, the applicant would have supplied PW1 with “an imprecise but substantial quantity of drugs which she did not have and which she might not ever have been able to procure”.

13. Despite the judge’s careful approach to sentence, I am a little concerned as to the basis for the sentence on Charge 3, in which the applicant, having short-changed PW1 on the amount of drugs he was asking for in Charges 1 and 2, decamped with the money on the (somewhat optimistic, as the judge found) promise of supplying PW1 with more drugs, ostensibly because she could not contact her boss.  Indeed, the reason just referred to by the judge as the basis for the starting point in respect of Charge 3 (supra at para 12), might be said to involve a slight contradiction in terms; which could affect the perception of her level of culpability.

14. The total known quantity of “Ice” in which the applicant trafficked was, for sentencing purposes, 2.98 grammes, as well as an unknown quantity in which she offered to traffic before running off with the deposit.  Whilst these are three separate charges, albeit involving the same prosecution witness to whose request for drugs she was responding, the overall starting point was effectively 5 years’ imprisonment, which upon her pleas resulted in an overall sentence of 3 years and 4 months’ (40 months) imprisonment.

Conclusion

15. I will grant leave on the basis that there is a possible argument as to the appropriate overall sentence applicable to the somewhat unusual circumstances of the case.  However, the applicant should understand that the Court might also in due course consider what to do about the suspended sentence which appears to have been overlooked, notwithstanding that she was in breach of it at the time these offences were committed.

16. To that end, I shall grant Legal Aid to the applicant for the purposes of arguing her appeal against sentence.