HKSAR v. Ismi Kadarwati Prapto Wiyono

DCCC678/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 678 OF 2011

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Reasons for Sentence

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1.Defendant, you pleaded guilty to one offence of trafficking in dangerous drugs and not guilty to one offence of trafficking in purported dangerous drugs, each contrary to section 4A(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.You admitted the brief facts and I convicted you on the 1st charge.  I ordered the 2nd charge to be left on file, not to be proceeded with without leave of this court or the Court of Appeal.

3.What happened is as follows.

4.On 20 April last, WPC6936 (PW1) and other officers were patrolling No. 189 Hennessy Road, Wanchai.  At about 1330 hours, PW1 and another officer saw you at the lift lobby of the 14th floor.  You looked nervous and turned and walked quickly towards the rear staircase.  They intercepted you and searched your bag and found the following:

(1) 19 plastic bags of suspected dangerous drugs (Exhibit 1);

(2) 63 tablets of suspected dangerous drugs (Exhibit 2);

(3) 1 plastic bag of suspected dangerous drugs (Exhibit 3); and

(4) 3 tablets containing suspected dangerous drugs (Exhibit 4).

5.These exhibits form the basis of Charge 1, which you admitted.

6.In your bag, PW1 also found one electronic scale (Exhibit 5) and a plastic bag containing 50 other plastic bags (Exhibit 6). Under arrest and caution you admitted possessing Exhibits 1 to 4 for self-consumption and for supplying to your friends.

7.Subsequent analysis showed the following:

(1) Exhibit 1 contained 9.04 grammes of powder containing 7.36 grammes of ketamine;

(2) Exhibit 2, 63 tablets contained 0.43 grammes of Nimetazepam;

(3) Exhibit 3, 0.37 grammes of methamphetamine hydrochloride, otherwise known as “Ice”; and

(4) Exhibit 4, 3 tablets containing 2 milligrammes of Flunitrazepam.

8.In a video-recorded interview, you admitted the following:

(1) you knew that Exhibits 1 to 3 were respectively ketamine, Nimetazepam and methamphetamine hydrochloride;

(2) you represented Exhibit 4 as Ecstasy;

(3) all were for self-consumption and supply to friends;

(4) Exhibit 5 and Exhibit 6 were to divide up the dangerous drugs.

9.You possessed Exhibits 1 to 6 for the purpose of trafficking.  No cash was found in your possession.  The estimated street value of Exhibits 1 to 4 was about $4,107.

10.You are a lady of hitherto clear record. 

11.Miss Liang entered mitigation on your behalf. She said that you agreed with the contents of the antecedents statement, that you are 30 years of age with no relative in Hong Kong.  You had gone to university for two years but had been forced to leave due to poverty.  You came to Hong Kong in 2002 as a domestic helper but you lost that job in 2005 and you could not find another. 

12.The terrible disaster of the tsunami left you without a home in Indonesia so you applied for refugee status.  That process takes a long time and you were on a recognisance for four years which would expire in 2013.  Your status as a refugee applicant meant that you could not work, you were effectively homeless relying on friends and in receipt of only $1,000 per month for food.  I was told that at the time of the offence you were depressed.  You were given the drugs by a Thai dealer who expected you to sell them to your friends.  You had not been able to do this and this is evidenced by the fact that no money was found upon you.

13.Miss Liang said that you had become increasingly addicted to “Ice” so that the small quantity of “Ice” found was for your own consumption.  She urged me to accept this and grant a discount on this basis.

14.On your behalf, she emphasised your clear record, your plea of guilty and your co-operation with the police on arrest. She suggested I should take an overall starting point of 2 years.  She also asked me to adopt the combined approach as taken in HKSAR v Yip Wai Yin and Another, CACC80/2003. 

15.She also referred me to the case of HKSAR v Chow Kam Lung, CACC68/2010, which says that the factual basis most favourable to the defendant should be taken by the court.

16.Mr Wong, the prosecutor, referred me to the case of HKSAR v Wong Kin Kau, CACC269/2009.  Whilst that case does deal with much larger quantities of dangerous drugs and is a much more serious case, it lays down the methodology for converting “Ice” to the equivalent of ketamine. That was a factor of five.

17.I turn now to the sentence.

18.I accept that you are a person of hitherto clear record, that you were co-operative with the police and have entered a plea of guilty at the earliest opportunity.  I also note the offence took place because you were in poor financial and domestic circumstances, but of course, this did arise through your own decision to apply for refugee status. 

19.I also accept that the sentence should take into account that there was a degree of self-consumption, especially relating to the “Ice”.  Nonetheless, trafficking in dangerous drugs is always a serious offence and one for which only a substantial prison sentence is appropriate.

20.I adopt the combined approach.  The normal starting point in my opinion would be one of 3½ years.  However, given the factor of self-consumption, that will be a starting point of 3 years.  You have pleaded guilty, therefore you are entitled to a further discount of one-third.  Therefore you will go to prison for a period of 2 years.