HKSAR v. Desti Wulandari Komarsono and Others

HCCC 410/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 410 OF 2014

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

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COURT: These three defendants, all Indonesian ladies, were jointly charged with one count of trafficking in dangerous drugs, involving over 3 kilogrammes of a mixture containing over 1.4 kilogramme of heroin hydrochloride and over 450 grammes of 6-monoacetylmorphine hydrochloride. That is Count 1.

Each defendant also faced an alternative charge of trafficking in dangerous drugs in a smaller amount. That is Counts 2, 3 and 4 respectively.

They all pleaded not guilty to the joint count but guilty to the alternate count they each faced. After they admitted the Summary of Facts, I duly convicted them of the respective alternative counts they had pleaded guilty to.

The Summary of Facts

The facts are relatively straightforward. On 4 April 2014, the three defendants were on board a mainland-bound private car when the car was stopped for Customs clearance at Shenzhen Bay Control Point. Upon search, packets of dangerous drug were found concealed on the persons of the three defendants, hidden inside their bras and their underpants. In the case of the 2nd defendant, a packet was also found concealed inside her vagina. A packet was also found concealed in D3’s vagina.

The quantity of drugs involved and its value were later found as follows:

The 1st defendant, 1,213.78 grammes of a mixture containing 561.12 grammes of heroin hydrochloride and 187.10 grammes of 6-monoacetylmorphine hydrochloride. The estimated value was $818,087.72.

D2, 1,050.75 grammes of a mixture containing 499.77 grammes of heroin hydrochloride, and 148.30 grammes of 6-monoacetylmorphine hydrochloride. The estimated value was $708,205.50.

D3, 842.20 grammes of a mixture containing 418.78 grammes of heroin hydrochloride and 119.92 grammes of 6-monoacetylmorphine hydrochloride. The estimated value was $567,791.08.

All three defendants were arrested. Under caution, D1 said it was chemical things but then claimed that she did not know the exact nature of the stuff. She said she was promised US$1,000 by a friend in Kuala Lumpur to bring the stuff to Guangzhou.

Later, in a video-recorded interview, D1 said she went alone to Kuala Lumpur; D2 and D3 later joined her and they shared a hotel room. D1 claimed a Nigerian man named William asked them to deliver some goods for him to Guangzhou. She agreed even though she did not know what the goods were. She concealed the stuff inside her bra. She saw William giving the stuff to D2 and D3 who also concealed them inside their bras. William told D1 that each of them would receive US$1,000 as a reward.

D2, under caution, denied knowing the nature of the stuff. She claimed she was asked to deliver them by a friend in Kuala Lumpur and she agreed to do it to get a free ticket to travel. D2 refused to answer any questions relating to the dangerous drug when interviewed.

D3, under caution, claimed the things she carried on her did not belong to her and she received no remuneration. During the video-recorded interview, D3 claimed she went to Kuala Lumpur for business with D2 and they met up with D1 there. In the hotel room the three shared, it was D1 who had given her some stuff concealed inside her bra. D1 did not tell her what the stuff was when she asked. D1 then gave her some more stuff and asked her to put it inside her vagina, which D3 complied.

Each defendant admitted and accepted that they possessed the individual amounts of dangerous drugs seized from each of them for the purpose of unlawful trafficking.

The Background and Mitigation

D1 is a 31-year-old single lady who was educated up to higher diploma level. She has a clear record in Hong Kong and claimed to be the owner of a fashion shop earning around the equivalent of HK$7,000 per month. Mr Hemmings, counsel for D1, admitted there is nothing much he could say for a case of this nature when there are sentencing guidelines, save that the 1st defendant pleaded guilty.

Mr Hemmings described to me in detail the efforts made by the 1st defendant to assist the authorities and the prosecution has sought confirmation from the Malaysian government on three occasions without avail.

D2 is 30 years of age. She is a divorced woman and has no criminal record in Hong Kong. Miss Diane Crebbin, counsel for the 2nd defendant, told me that D2 came from a good family background and she obtained a degree in economics in Indonesia. She had worked at banks, earning around HK$1,700 to HK$1,800. She came to know the 1st defendant when they both worked in a bank. D2 was doing a Masters degree at the time of the offence and she ran a clothing shop with a monthly income of about HK$1,500.

D2 said that she met D3 and she introduced D3 to D1, and on this occasion, she could not explain why she had committed the present offence but she is remorseful for what she had done and the effect her crime had on her family. D2 had tried her best to assist the authorities but, unfortunately, no positive result have come out so far.

Miss Crebbin asked me to consider starting at the lower end when taking into account D2’s previous good background and her willingness to assist the authorities. D2 personally wrote to me, expressing her remorse and a copy of her university degree was shown to me.

D3 is 35 years of age, divorced, and has no criminal record in Hong Kong. She had attained tertiary education in Indonesia and worked as a shop assistant, earning about HK$7,000. Mr Kamlesh, counsel for the 3rd defendant, handed me a letter showing her remorse and also various documents relating to the 3rd defendant’s background and achievements. In fact, a copy of her CV was attached.

D3 used to work in banking and finance institutes. She incurred debts when she married her husband and then had to repay the debts after the divorce, which explains why she had committed the present offence. She is remorseful and also tried to assist the authorities, but without avail at present.

Trafficking in a dangerous drug is a serious crime. A person convicted of this offence, on indictment, is liable to be fined HK$5 million and to imprisonment for life.

The Court of Appeal, in the case of Lau Tak Ming, set down guideline sentences for the trafficking of heroin hydrochloride.

Apart from heroin hydrochloride, another substance, that is the 6-monoacetylmorphine hydrochloride, was also found. There is no dispute that for the purpose of sentencing, 6-monoacetylmorphine hydrochloride is to be treated as heroin hydrochloride, as this 6-monoacetylmorphine hydrochloride has a similar potency to heroin hydrochloride in its narcotic properties. That is in the case of HKSAR v Daresa Mariam Guma, CACC 155/2012.

The total amounts of narcotics for the purpose of sentence are therefore as follows:

D1 - 561.12 plus 187.1 equals to 748.22 grammes.

D2 - 499.77 plus 148.30 equals to 648.07 grammes.

D3 - 418.78 plus 119.92 equals to 538.7 grammes.

So according to the guidelines in Lau Tak Ming, for an amount between 400 to 600 grammes, the appropriate starting point is between 15 to 20 years. For an amount over 600 grammes, the appropriate sentence is from 20 years upwards. In the case of HKSAR v Abdallah Anwar Abbas, the Court of Appeal set down further guidelines for the trafficking of over 600 grammes of heroin hydrochloride. For the trafficking of 600 to 1,200 grammes, the sentence is between 20 to 23 years.

All three defendants are first offenders and they appear to be couriers and not the masterminds. For the avoidance of doubt, I will not take into account what D1 and D3 had said in their respective video-recorded interviews about the other defendants, but only what they admitted against themselves, when I consider the appropriate sentence.

The amount of narcotics found on each person is different, with D1 carrying the most, 748.22 grammes, and D3 the least, 538.70 grammes. Whilst I take into consideration the actual amount involved, I do bear in mind the circumstances or how each of the three came to commit the offence and their criminal culpability appeared to be very similar. There is no evidence that D1 was a leader among the group so she carried a larger amount. It does appear to be that it was simply a matter of distribution of the various packets and D1 happened to have the larger amount and D3 the smallest.

As the quantity is not the only factor for consideration, though an important factor, I am of the view that in the circumstances of this present case, all three should receive the same starting point: D1, 20 years; D2, 20 years; D3, 20 years.

There is an aggravating factor as an international element is involved (see the case of HKSAR v Hong Chang Chi). I am of the view that an enhancement of 1 year to each defendant is appropriate here (see the case of HKSAR v Chung Ping Kun, CACC 85/2014). After enhancement, the appropriate sentence for each defendant is as follows: D1, 21 years; D2, 21 years; D3, 21 years.

They have all pleaded guilty before me and I will give them the full one-third discount. After discount, their sentences would be: D1, 14 years; D2, 14 years; D3, 14 years.

I appreciate that each defendant is willing to assist the authorities and they have tried their best to do what they can but, unfortunately, no fruitful outcome has appeared and for the purpose of sentencing, I cannot just take into account their willingness to reduce the sentence, so there is no basis to reduce the sentence on the basis of their willingness to assist the authorities.

There are no other grounds to further reduce the sentence so the actual sentence is:

D1 - 14 years’ imprisonment.

D2 - 14 years’ imprisonment.

D3 - 14 years’ imprisonment.