HKSAR v. Aprilia Widiawati

HCCC 425/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 425 OF 2016

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

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COURT:

Defendant, you have pleaded guilty to trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. That plea was entered before a magistrate at the Eastern Magistracy on 7 October 2016. You have been committed here to the Court of First Instance for sentence.

The facts of this case are that on 18 February 2016, whilst police officers were on patrol at the Kong Ha Wai, Kam Sheung Road, Pat Heung, Yuen Long, police officers noticed that you were acting suspiciously. Before they approached you, you went into Room 3 of a stone hut nearby. You were eventually subdued. Inside this stone hut were two rooms; that is the one that you went into, Room 3, and Room 4. The drugs as stated in the charge were found scattered on the beds of these two rooms.

Inside Room 3, were some straw packets, unpacked drugs and a pack of herbal cannabis. There was also drug packaging paraphernalia including plastic straws, a pair of scissors, an electronic scale, a knife, a roll of tinfoil, a lighter and a bag of transparent plastic bags. In addition, the police found cash of $9,970 and three mobile phones.

In the adjacent room to Room 3, that is Room 4, the police found from that bed the further drugs which are part of the charge and some part I poison, more drug packaging paraphernalia including plastic straws, an electronic scale, a blender and empty transparent plastic bags were also seized.

The street value of the heroin hydrochloride seized was $1,132,190 and all the cannabis in herbal form was $241,668.

The amount of drugs that you were unlawfully trafficking in was, in total, 1,601.4 grammes of a mixture containing 1,004.4 grammes of heroin hydrochloride and 2,301.6 grammes of cannabis in herbal form.

Defendant, you are 29 years of age and are Indonesian. You had originally come to Hong Kong as a domestic helper. After approximately one year, you then terminated your employment and made a claim as a torture claimant, as a result of which, you were given your Form 8 recognisance. You are divorced, I am told by Mr Mitchell, some seven years ago and have a young son aged 8.

You have written a letter to me explaining that the reason why you committed this offence was to finance your father’s medical expenses in view of his ill health. If it had not been for that, you would never have been in breach of the law. You are very regretful for the huge mistake that you have made and understand the potential harm that you might have caused to a variety of people.

Mr Mitchell, your defence counsel, correctly reflects that in this type of cases, family circumstances and reasons for committing the offence will not act as mitigation such as to reduce the otherwise appropriate sentence. Mr Mitchell says what is clear here, looking at the photographs of the rooms, the two rooms in Room 8, is that this was not a sophisticated operation.

I accept that this was not a sophisticated operation, but they were certainly very large amounts of drugs kept in a very rudimentary way, however the two rooms were effectively a room for packaging dangerous drugs. Although clearly, at least, both rooms had also been used for living.

Mr Mitchell has mitigated on your behalf that you defendant was only a drug mule used for the trafficking of drugs and the two other major players were someone the defendant mentioned in her interview, called Lina, and another Chinese male who delivered the drugs to the premises. However, the defendant knew little about these people and was therefore unable to assist the authorities further in regard to their details.

Mr Mitchell has referred to the authorities in respect of the sentencing guidelines for heroin which, in this case, in view of the large amounts, is set out in HKSAR v Abdallah Anwar Abbas. For amounts of between 600 and 1,200 grammes, a sentence after trial of between 20 and 23 years is appropriate. The reference for trafficking in cannabis is R v Tuen Shui Ming, CAAR 12/1994, where in that case, the courts laid down bands for trafficking in cannabis resin, but in respect of herbal cannabis, the courts stated there that herbal cannabis was four times less potent than that of cannabis resin.

In this case, defendant, you are a Form 8 holder, a torture claimant, and this, as the courts have said, where it involves serious offences, by its nature is an aggravating factor warranting an upward adjustment of the starting point of sentence.

The case is that of HKSAR v Shah Syed Arif, CACC 298/2015, where the courts refer to there HKSAR v Sandagdorj Altankuyag [2014] 1 HKC 206, the courts held that it is true that not every offence committed by a torture claimant would aggravate the crime, but when the crime is as serious as trafficking in dangerous drugs, this will undoubtedly affect the community at large and have an impact on Hong Kong’s reputation for order and security and thereby constitute an aggravating factor when such a crime is committed by a torture claimant.

Of course, each case will turn on its own particular facts and circumstances and the court has a discretion as to whether or not a sentence should be enhanced in such a situation. I do consider that in this case, this is a very serious offence and you being a torture claimant, that this sentence should be enhanced.

Defendant, the heroin in this case is the more potent drug, certainly the more serious drug of two drugs involved, following the authority in Abdallah, for 1,004.4 grammes of heroin hydrochloride, an appropriate starting point would be one of 22 years’ imprisonment.

The herbal cannabis in this case is 2,301.6 grammes. As it is four times less potent and in following Tuen Shui Ming, I would divide that amount by four to convert that into cannabis resin and that would amount to 575 grammes. In following the guidelines in that case, that would equate to approximately 4 months’ imprisonment. And applying the conversion rate of 4 months, if I converted that amount to heroin, that, in my view, would be nominal. I therefore would not increase the starting point of 22 years.

For the aggravating factor of you being a torture claimant, given the quantity of drugs involved, I consider 1 year to be the appropriate enhancement and therefore the sentencing point shall be one of 23 years’ imprisonment.

As Mr Mitchell rightly points out, this offence was committed prior to the Court of Appeal’s decision in Ngo Van Nam, CACC 418/2014 and Abdou Maikido Abdoulkarim, CACC 327/2015, and that is when your plea came up after the new sentencing policy was set out. In your instance, you pleaded guilty at the first opportunity and therefore you are entitled to your full one-third discount to reflect your plea of guilty.

In the circumstances, giving you your full one-third discount, your sentence shall be reduced to one of 15 years and 4 months’ imprisonment.

You have one previous conviction for which you were sentenced, for an offence of breach of condition of stay, to 10 days’ imprisonment suspended for 3 years, on 23 May 2013. You have committed the present offence whilst this suspended sentence was active. This offence was committed towards the end of that term. Therefore, I activate that suspended sentence.

However, in view of the lengthy term of imprisonment to which you are serving, I see no purpose to have you serve a further sentence. Therefore, that term of 10 days’ imprisonment is to run concurrent to your present term, which still makes a total term of 15 years and 4 months’ imprisonment.