HKSAR v. PANGOSBAN NELLIE ALISANGCO

HCCC 119/2022

[2023] HKCFI 2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 119 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of attempting to traffic in a dangerous drug before Magistrate Mr Jason Lam, admitted to the summary of facts read out in court and was, on 1 August 2022, committed to the Court of First Instance for sentence.

2.  Particulars of the count are that she on 20 May 2021, at the carpark opposite to Ng Ka Tsuen Public Toilet, Kam Sheung Road, Yuen Long, New Territories in Hong Kong, attempted to unlawfully traffic in a dangerous drug, namely 4,960g of a crystalline solid containing 4,924g of methamphetamine hydrochloride (“ice”).

Summary of Facts

3.  On 14 May 2021, the above dangerous drugs were found from a 40-foot container that originated from Thailand, concealed in 5 spools of rubber tubes.

4.  On 20 May 2021, after the drugs were replaced with sugar, a controlled delivery operation was conducted, delivering the goods to the recipient address stated on the Bill of Lading, which was at No. 18 Ng Ka Tsuen.

5.  The defendant showed up at the carpark opposite the Ng Ka Tsuen Public Toilet at around 11am, showing the undercover Customs Officer a photo of a Canadian passport bearing the name of the recipient, as well as that person’s ‘ID picture’ that were on her mobile phone.

6.  Upon being asked if she was the recipient ‘Kenneth’, the defendant replied in English that she was helping Kenneth to collect the goods. The officer made a phone call to the genuine logistic manager of the delivery company, who called the phone number stated on the Bill of Lading, and was told by someone who claimed to be the recipient Kenneth that the defendant was the new recipient. The manager called to inform the Officer of the new recipient’s name. The officer wrote it down on the Delivery Cartage Advice (“the Advice”) and asked for the defendant’s name, whereupon she produced a Form 8 Recognizance form with her name as proof of her identity.

7.  The officer confirmed the names matched.  The defendant signed on two copies of the Advice, collected the package with the sugar inside.

8.  The operation turned overt at about 11:35am. The defendant was intercepted and arrested for the offence of trafficking in a dangerous drug.  Under caution, the defendant said the package belonged to her friend, who was going to message her to tell her what to do with it after the collection.  She did not know the name of the friend, but she has the phone number in her phone.  The defendant said she was not promised any reward for collecting the package.  She refused to take part in a controlled delivery of the package.

9.  In the subsequent video recorded interview, the defendant claimed under caution that she had received a job order from a person known as “My Friend” on the morning of 20 May. “My Friend” was a friend of the defendant’s ex-boyfriend, and they met in September 2020.  She did not know his full name, just that it was a male and people called him “Ip-Gu”.

10.  The defendant admitted through the final paragraph of the Summary of Facts that she had attempted to traffic in all the particularized dangerous drugs at the material time.

Previous conviction

11.  The defendant is of previously clear record.

Background and mitigation

12.  The defendant is 36 years old and has 2 daughters aged 12 and 14 who live in the Philippines and are being looked after by the defendant’s younger sister. The defendant used to work as a domestic helper but had become unemployed since 2019.  She had been diagnosed with breast cancer in January 2021, about 4 months before her commission of the offence, but treatment has been effective and she is now in remission.

13.  Mr Boyton submits that given the age of the defendant, she will be in her late forties upon release, and invites the court to consider whether the sentence would be crushing on her, someone of limited skills and who may face the reoccurrence of cancer.

14.  The defendant had given non-prejudicial statements but the authorities have confirmed that they are of no practical value and Mr Boyton did not pursue this possible ground of mitigation any further.

Sentence

15.  The maximum sentence for the offence of trafficking in a dangerous drug is that of a fine of $5 million and life imprisonment.  This applies also to an attempt to commit the offence.

16.  It is not disputed that the applicable tariff band for the trafficking of “ice” as set out in the case of HKSAR v Tam Yi Chun CACC 524/2011 and HKSAR v Abdallah Anwar Abbas CACC 304/2008 is the “26 to 30 years’ imprisonment” band.

17.  Although the defendant had pleaded guilty before the magistrate prior the Court of Appeal’s judgment in HKSAR v Herry Jane Yusuph [2020] HKCA 974 was handed down, Mr Boyton submits that the court could still follow the steps of sentencing set out in that case.  I agree.

18.  Although the defendant is being sentenced for attempting to traffic in the particularized drugs, I find that the only reason she could not have committed the substantive offence was because the officers had intercepted the drugs beforehand. I find the defendant’s attempt to receive the drugs with the intention to pass them on to someone else, in the circumstances of the case, equal in seriousness and culpability to the substantive offence. Furthermore, the defendant had admitted specifically in the Summary of Facts that she had attempted to traffic in all the seized dangerous drugs.  As such, the defendant will be sentenced based on the full quantity of the particularized narcotic contents.

AGGRAVATING FACTOR

19.  I find that there is insufficient evidence to suggest that the defendant had taken any part in the arrangement of the importation of the drugs into Hong Kong.  I find, however, that she was a courier for the drugs.  As such, the arithmetical application of the tariff sentence applies, and the notional starting point is that of 26 years 4 months’ imprisonment.

20.  It is now well established that a Form 8 Recognizance holder committing a serious criminal offence is an aggravating factor, and that in cases involving the trafficking of dangerous drugs, or attempting to do so, the sentence should be enhanced by no less than 6 months: see HKSAR v Ali Saif [2018] HKCA 358.

21.  Bearing in mind the already very lengthy sentence the defendant is facing, and taking into consideration the principle of totality as requested by Mr Boyton, for this aggravating factor, I will exercise my discretion and impose a small enhancement of 6 months, taking it up to 26 years and 10 months’ imprisonment.

MITIGATING FACTORS

Non-prejudicial statements

22.  In relation to the fact that the defendant had provided non-prejudicial statements to the Police, for the sake of completeness, I have borne in mind the legal principles set out in the case of HKSAR v Yeung Hoi Ting [2019] HKCA 31; CACC 154/2016, where the Court of Appeal provided a step by step guide for dealing with assisting the authorities as a ground of mitigation.

23.  Since Mr Boyton did not seek to dispute the authorities’ decision that the contents of the statements do not have any practical value, the defendant will not receive any discount on the basis of assistance to the authority.

Ill-health

24.  As to the reliance on the fact that the defendant suffers from breast cancer as a ground for reducing her sentence, I refer to paragraphs [30-174] to [30-188] of Sentencing in Hong Kong, 10^th Edition, where it is clear that the view of the courts over the years is that “…medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity.”^[1]

25.  In the case of R v Ho Mei Lin, CACC 217/1996, one of the cases referred to by the Court of Final Appeal in Yip Kai-foon, the Applicant was convicted after trial on one count of trafficking in dangerous drugs and sentenced to 5 years’ imprisonment. Her ground of appeal against sentence is based on bone spurs in different parts of her body and the great pain she had been suffering from as a result.

26.  The Court of Appeal considered previous cases where ill health, including terminal cancer^[2], had been relied on as a ground of mitigation and came to the following conclusion:

“11. Accordingly it is now well established that except in the rarest cases, a prisoner's medical condition is not a matter to which this Court will have regard for mitigation of a proper sentence, though it may well be a matter for the Executive if brought to their attention and deserving of consideration. Plainly, therefore, there is nothing before us that would warrant the intervention of this Court, whatever view the Executive may take if it comes to that.”

27.  The defendant in the present case suffered from breast cancer, which, due to advancement in medical sciences has become treatable and sufferers are known to be able to stay cancer free for extended period of time if diagnosed in time. The medical facilities provided by our government hospitals are of very high standards and the defendant will be well taken care of, should her health condition changes.

28.  The defendant is, therefore, in keeping with well-established sentencing principles, not be granted any discount based on her health condition. The only mitigating factor is her timely guilty plea.

CONCLUSION

29.  That being the case, the defendant is sentenced to 214 months’ (17 years and 10 months) imprisonment after granting her the full one-third discount for her guilty plea.