HKSAR v. Wiwik Lestari

HCCC 91/2018

[2018] HKCFI 1731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 91 OF 2018

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

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COURT:

Background and the facts

This is a re-trial but at the pre-trial review the defence informed this court that the defendant would plead guilty to the count of trafficking in a dangerous drug, which is the sole count on the indictment.

This morning, the defendant so pleaded before me and she also accepted the Summary of Facts. I therefore convicted her of the offence accordingly.

The facts are briefly these:

On 14 January 2015, the defendant was observed by the police to have acted suspiciously while walking alone along Nathan Road and Mody Road. The police therefore conducted a search on her. As a result, the police found from the plastic bag which the defendant was carrying, three more plastic bags which contained the drugs particularised in the count; that is, a total of 998 grammes of a powder containing 572 grammes of cocaine. The drugs had an estimated value of $970,000.

The defendant was then arrested and she attended a video-recorded interview with the police subsequently. During the interview the defendant stated that she was an Indonesian domestic helper but she had left her employment around October 2014. At the time of her arrest, she was jobless and her friend had been supporting her. The defendant claimed that she was asked by a friend to pick up goods for which she would be given some money.

In respect of the drugs in question, the defendant told the police that in that afternoon she was asked to go to a building in Mongkok and get the stuff from near a garbage bin on the 14th floor of that building. The defendant did so. She was then to go to the MTR and she would be given $1,500.

Defendant’s background and mitigation

The defendant is now almost 34. She was born in Indonesia and was educated up to junior high school level there. Between October 2009 and October 2014 she worked as a domestic helper. But thereafter she remained unemployed.

The defendant had a clear record in Hong Kong prior to her commission of the present offence.

In mitigation, Mr Arthur, for the defendant, told the court that the defendant was preyed upon by the drug syndicate. She was not a career criminal, but instead she was an unsophisticated person who was desperate for money at the time of the offence.

A letter from the defendant’s younger brother was given to the court in which the defendant was described as the backbone of the family from 2003 onward.

Mr Arthur also emphasised the clear record of the defendant and the point that she has offered assistance in Father Wotherspoon’s campaign.

As regards the discount to be given to the defendant, while acknowledging that the authorities point to a 25 per cent reduction for a plea on a re-trial, Mr Arthur nevertheless asked the court to impose as lenient a sentence on the defendant as possible.

The sentence

The tariffs for trafficking in cocaine were the same as those for heroin, see AG v Rojas [1994] 1 HKC 342. For trafficking between 400 and 600 grammes of cocaine, a term of 15 to 20 years’ imprisonment is called for. In the defendant’s previous trial, the then trial judge adopted a starting point of 18 years for the quantity of cocaine involved in this case. I agree that such a starting point was appropriate and I would adopt the same in this sentencing exercise.

The defendant pleaded guilty, but this plea was only entered at her re-trial. In the circumstances, and as decided in the relevant authorities, I do not consider that the full one-third reduction should be given for her guilty plea today. Instead, I am of the view that a 25 per cent reduction is appropriate.

I have listened carefully to the matters urged upon me by Mr Arthur on the defendant’s behalf, but there is nothing which would warrant any further reduction in sentence other than her guilty plea. The defendant’s previous clear record and her family circumstances are of no assistance to her in the face of such serious offences like trafficking in a dangerous drug, especially in this case because of the huge quantity involved.

While the defendant is said to have offered assistance in a campaign, such assistance in the present case is also not a matter which would attract a reduction in sentence.

18 years reduced by 25 per cent is a term of 13½ years. I therefore sentence the defendant to a term of 13½ years’ imprisonment in respect of the count of trafficking in a dangerous drug to which she has pleaded guilty.