HKSAR v. Wiwik Lestari

HCCC 227/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 227 OF 2015

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

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COURT: The defendant is charged with one count of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The drug concerned was cocaine, namely 998 grammes of a powder with a narcotic quantity of 572 grammes of cocaine.

The defendant pleads not guilty, and the matter is tried before a jury, by a majority of 6 to 1, she is found guilty of the charge.

The facts, as they appear from the trial, were that the defendant was stopped and searched by police officers in the vicinity of the junction of Mody and Nathan Roads in Tsim Sha Tsui. She was carrying a white plastic bag in her left hand, and when it was searched, the police found three transparent plastic bags, each containing a powdery substance suspected to be dangerous drugs. Subsequent analysis by the government chemist confirmed the nature and quantity of the drug as set out in the indictment.

The defendant said nothing at the scene, but in a later video interview, admitted that she was delivering the drugs on a telephone instruction of an unknown male. Having first collected them from a rubbish bin on the 14th floor of a building, whose name she said she did not know, she was to be paid $1,500 for this work.

The defendant claim that she did not know that what she was carrying was dangerous drugs, and that members of the police have destroyed the rice boxes which might show that she believed she was collecting food. The suggestion was that the drug was obscured by rice boxes, which meant that she could not see what was inside in the bag.

The defendant gave evidence at trial, and enlarged on the scenario of her being asked to deliver a food order. She claimed that the intended recipient was her girlfriend’s boyfriend, Wisman(?), whom she had known for some time, and whom she had no reason to distrust.

Under cross-examination, a greater amount of detail emerged, some of which were not mentioned in her evidence-in-chief. However, the defendant’s explanation was highly improbable, and the allegation that she had been pressured into making the admissions recorded in the video interview by the police, who had coached her, were not believable.

The defendant is aged 51, and is an Indonesian national, who came to Hong Kong as a domestic helper in 2009. She stopped working as such and in October 2014, she was not employed after that, and was still unemployed when she was arrested. Defendant said that financially she was supported by her friends who gave her money, including provisions of rent for her accommodation. The defendant had a clear record.

The jury verdict was delivered on 30 June 2016, and counsel for the defendant sought to adjourn mitigation and sentencing until 6 July, which is today, so that his client could be interviewed by police on various peripheral matters that might impinge upon mitigation. The request was granted, I have been advised today there was no useful information available from the defendant after the interview, and apart from the information admitted and the antecedent statement, which is said to be correct, the only additional matter was to confirm that she was single and in good health.

Sentences for trafficking in cocaine obeys the guidelines in R v Lau Tak Ming and Others [1990] HKLR 370. That cocaine should be treated as heroin was set out in AG v Pedro Nel Rojas [1993] AR 15, unreported. The sentence for a narcotic quantity of cocaine between 400 to 600 grammes should be within the range of 15 to 20 years for conviction after trial. Here, the quantity of narcotic is 572 grammes, which puts the sentence towards the top of the sentencing range.

Despite Mr Poon’s representation that she is of clear record, it is obviously what mitigation the defendant can properly pray in aid, because that is the only thing that can be said in her favour.

There was no early or indeed any plea of guilty despite strong evidence. Video interview was contested. It was alleged that the police is oppressing her, and pressured the defendant into making coached admissions. That allegation was clearly rejected by the jury. And instead, obviously, why the police would put pressure on the defendant in order for her to make numerous denials that she knew what she was carrying was cocaine.

As for the assistance which was apparently offered, it seems to be that it was too little and too late. This offence occurred in January 2015, some 18 months ago. If the defendant had actively assisted around the date of the arrest, there must have been a chance, albeit a very slim one, that the police could have acted against persons involved in this transaction. To offer assistance at the end of the trial, given the transient, undocumented and anonymous nature of the drug dealing, with the major protagonists known only by her nickname, and never used the SIM more than a few times, is less than useless, and showed a somewhat simple misuse of the court system.

Given the quantity of the narcotic, I adopt a starting point of 18 years, and as there is no cogent mitigation, that also becomes my sentencing point. The defendant is sentenced to 18 years’ imprisonment.