HKSAR v. FELIZARDO JOSEPHINE MORAL

CACC 334/2019

[2020] HKCA 626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 334 OF 2019

(ON APPEAL FROM HCCC NO 145 OF 2019)

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J U D G M E N T

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1.  The applicant pleaded guilty on 25 October 2019 before S T Poon J (“the judge”) to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. There were three types of drugs particularised in the charge, the respective narcotic contents of which were 27.90 grammes of cocaine, 23.09 grammes of methamphetamine and 19 grammes of ketamine. The applicant was sentenced to 7 years and 10 months’ imprisonment. She now seeks leave to appeal against her sentence, having filed her Form XI notice of application within time, on 20 November 2019.

The facts

2.  At about 12:35 pm on 28 April 2018, police officers executed a search warrant at a room on the 1^st Floor of an address in Shanghai Street, Yau Ma Tei in Kowloon (“the premises”).  The applicant was found inside the premises holding a toiletry bag.  Also in the premises was another woman.  The toiletry bag was searched and the following items were found inside:

(a)  9 plastic bags containing a total of 7.43 grammes of a solid containing 7.10 grammes of cocaine;

(b)  4 plastic bags containing a total of 11.90 grammes of a crystalline solid containing 1.54 grammes of methamphetamine;

(c)  1 plastic bag containing 21.70 grammes of a solid containing 20.80 grammes of cocaine;

(d)  1 plastic bag containing 25.20 grammes of a mixture containing 1.85 grammes of methamphetamine and 19 grammes of ketamine;

(e)  1 packet containing 49.90 grammes of a crystalline solid containing 19.70 grammes of methamphetamine hydrochloride.

3.  The toiletry bag also contained an electronic scale, some empty re-sealable plastic bags and a notepad with handwritten contents relating to names and the quantities of dangerous drugs.  The police also found on the bed in the premises a purse containing $18,450 in cash.  The applicant's DNA was subsequently found on that purse.

4.  WhatsApp messages were subsequently retrieved from the applicant’s mobile telephone and were found to contain references relating to the supply of dangerous drugs.

5.  The applicant was arrested but remained silent under caution.  In subsequent video-recorded interviews with the police, the applicant claimed that she had no idea what was in the toiletry bag, and that she had been invited by the other woman to stay in the premises overnight, since she was homeless.

6.  In pleading guilty, however, the applicant admitted and accepted that she had possessed the dangerous drugs found in the toiletry bag and particularised in the charge for the purpose of trafficking.

Personal circumstances and mitigation

7.  The applicant was 37 years of age at the time of sentence.  She was originally a domestic helper from the Philippines.  She had remained in Hong Kong after her contract had been terminated in 2016.  On 20 December 2016, she was sentenced to 6 weeks’ imprisonment suspended for 3 years for breach of condition of stay.  The present offence was committed within the period of that suspended sentence.  She was a married woman with four children.  Her children were all studying at schools in the Philippines. At the time of the offence, she was also a Form 8 recognizance holder.

8.  In mitigation, defence counsel at trial (not Mr Marray) submitted that the individual approach to sentencing for trafficking in a cocktail of drugs would lead to a sentence of 19½ years’ imprisonment in the present case.  Accordingly, as a matter of fairness and common sense, the combined approach should be adopted instead. 

9.  Adopting that approach, methamphetamine was the most serious and potent dangerous drug of the cocktail concerned, although there was slightly more cocaine in terms of quantity.  Counsel suggested that before making an upward adjustment for the remaining drugs, 23.09 grammes of methamphetamine would attract a sentence of 8½ years’ imprisonment.  He then advocated an adjustment of the starting point, taking into account the other drugs involved, to 11 years’ imprisonment.  For the aggravating feature of being a Form 8 recognizance holder, he suggested an enhancement of between 6 months’ and 1 year’s imprisonment. 

10.  Counsel then urged a reduction of the notional sentence after trial by a full one-third for the applicant’s plea of guilty entered at the first available opportunity.

Reasons for sentence

11.  The judge applied the combined approach, as had been urged by defence counsel at trial. Referring to the tariff in HKSAR v Tam Yi Chun (No 2)[1], and based on the amount of methamphetamine found in the premises, he adopted a starting point of 8½ years’ imprisonment.  This figure was then increased to 11 years’ imprisonment for the remaining drugs involved, again as suggested by defence counsel at trial.  A further enhancement of 9 months’ imprisonment was imposed for the applicant’s Form 8 status.  The judge accepted that the applicant was entitled to a full one-third discount for plea and reduced the sentence to 7 years and 10 months’ imprisonment. 

12.  Finally, the judge activated the suspended sentence of 6 weeks’ imprisonment for the applicant’s breach of condition of stay but, in view of the totality principle, ordered it to run concurrently with the sentence he was passing.

Grounds of appeal against sentence and submissions

13.  Mr Marray, on behalf of the applicant, did not dispute the adoption of the combined approach, or that methamphetamine was the most serious and potent of the dangerous drugs concerned.  His grounds of appeal were to the effect that the enhanced starting point of 11 years’ imprisonment was manifestly excessive and that the combined approach was not correctly applied.  He referred to HKSAR v Chan Yuk Leong[2], where the Court had set out three tests to cross-check the result of the combined approach, namely, the ‘absurdity test’, the ‘conversion test’ and the ‘ratio test’.  The respective results of the tests (according to Mr Marray’s calculation) were:

(a)  A starting point of 11 years’ imprisonment (the absurdity test);

(b)  A starting point of 8 years and 8 months’ imprisonment (the conversion test);

(c)  A starting point of 8 years and 9 months’ imprisonment (the ratio test).

14.  It was submitted that the starting point of 11 years adopted by the judge was manifestly excessive, since it exceeded the results of both the conversion test and the ratio test, even though it did not exceed the result of the absurdity test.  It was argued that a lower starting point, in compliance with all three tests, should have been adopted.  In argument before me, Mr Marray accepted that a fair and balanced notional sentence after trial for the combination of dangerous drugs concerned, leaving aside the Form 8 recognizance factor, would have been about 10 years’ imprisonment.

Respondent’s submissions

15.  Mr Lau, for the respondent, submitted that the court may either take an individual approach or a combined approach in sentencing for trafficking in a cocktail or combination of drugs (see HKSAR v Yip Wai Yin & Anor[3]; HKSAR v Cheung Wai Man[4]). The results could then be cross-checked by the three tests referred to in Cheung Wai Man. 

16.  By the respondent’s calculation, the results of the different approaches and tests were as follows:

(a)  A total starting point of 18 years and 7 months’ imprisonment (the individual approach);

(b)  A starting point of 7 years and 10 months’ imprisonment (for 23.09 grammes of methamphetamine), to be adjusted upwards for the remaining dangerous drugs (the combined approach);

(c)  A starting point of 11 years’ imprisonment (the absurdity test).

(d)  A starting point of 8 years and 8 months’ imprisonment (the conversion test);

(e)  A starting point of 8 years and 9 months’ imprisonment (the ratio test).

17.  Mr Lau submitted that the combined approach was appropriate.  He accepted that the starting point of 8½ years’ imprisonment adopted by the judge was higher than a purely arithmetical application of the guidelines to the quantity of methamphetamine concerned, which would produce a starting point of 7 years 10 months’ imprisonment; however, the guidelines were based on the defendant concerned being a courier or storekeeper.  He pointed out that the figures adopted by the judge were those proposed by defence counsel in mitigation; moreover, the three tests used to cross-check the result were not meant to be applied as straight-jackets[5], and a starting point was not manifestly excessive simply because it was higher than the lower figures achieved when cross-checking the result.

18.  Further, given the following aggravating factors, the respondent submitted that the enhanced notional sentence after trial of 11 years and 9 months’ imprisonment was not manifestly excessive:

(a)  The applicant was trafficking in more than one type of dangerous drug, thus catering for a wider market with enhanced profits (see HKSAR v Yim Hung Lui Ricky[6]);

(b)  the combination of methamphetamine and ketamine posed a far greater danger to an abuser (see HKSAR v Cheung Kwok Leung[7]);

(c)  The WhatsApp messages retrieved from the applicant’s mobile telephone revealed that she was not a mere courier or storekeeper of dangerous drugs, but was actively involved in their dissemination (see HKSAR v Islam Azharul[8]); the purse of a sizeable quantity of cash supported the fact that she was actively trafficking in a substantial way;

(d)  The applicant was a Form 8 recognizance holder and the enhancement of 9 months’ imprisonment was appropriate (see HKSAR v Ali Saif [9]; Islam Azharul[10]).

19.  The judge properly reduced the sentence from 11 years and 9 months’ imprisonment to 7 years and 10 months’ imprisonment.  Having activated the suspended sentence and ordered it to run concurrently with the sentence for the substantive offence, it was submitted that the ultimate sentence of 7 years and 10 months’ imprisonment could not be criticised.

Consideration

20.  It is accepted that the judge’s adoption of a starting point of 8½ years’ imprisonment in respect of the more serious of the three dangerous drugs, namely methamphetamine, was on the high side, if the relevant guidelines are applied arithmetically. Under the guidelines in Tam Yi Chun (No 2), a quantity of 23.09 grammes of methamphetamine narcotic in the possession of a courier or storekeeper should normally attract a starting point of 7 years and 10 months’ imprisonment. 

21.  However, there are two difficulties with this argument.  First, the applicant was no mere courier or storekeeper, which is the role upon which the specific guidelines are based (see HKSAR v Kilima Abubakar Abbas[11]).  She was a dealer, the evidence for which was: (i) the electronic scale and the empty transparent re-sealable plastic bags inside the toiletry bag; (ii) the sizeable amount of cash in a purse with her DNA on it found in the premises, when she was a Form 8 recognizance holder; (iii) the notepad found in the applicant’s physical possession detailing names and the quantities of dangerous drugs; and (iv) the WhatsApp messages on her telephone detailing conversations with two contacts concerning dangerous drug dealings.  The judge would have been entirely justified on authority in adopting a higher starting point commensurate with the applicant’s more culpable role.

22.  The second difficulty is that the starting point of 8½ years’ imprisonment in respect of the methamphetamine component derived from the submission of defence counsel at trial.  Indeed, it was he who advocated the combined approach to sentence and the overall starting point of 11 years’ imprisonment, which the judge ultimately adopted.  However, I accept that counsel can make mistakes, which may not bind an appellate court.  On the other hand, we simply do not know why counsel made the submission he did; whether it was a mistaken calculation or, perhaps, a recognition of his client’s more culpable role in the offence.

23.  Whatever the position, I do not regard it as reasonably arguable that 8½ years’ imprisonment was an incorrect or inappropriate starting point for 23.09 grammes of methamphetamine narcotic, given the facts and the applicant’s greater role in the offence of trafficking.

24.  The next question is the enhancement for the other two types of dangerous drugs being trafficked by the applicant.  One of them was a not insubstantial quantity of cocaine, which is, of course, along with heroin, another very serious category of dangerous drug: indeed, 27.90 grammes of cocaine narcotic by itself would have merited an arithmetical starting point in respect of a courier or storekeeper of 6 years and 4 months’ imprisonment under the relevant Lau Tak Ming guidelines.  And had the 23.09 grammes of methamphetamine been regarded as cocaine instead, there would have been a total quantity of cocaine for sentencing purposes of 50.99 grammes of narcotic, which would have merited a starting point of 8 years’ imprisonment under the Lau Tak Ming guidelines for the courier or storekeeper.  But it was not all cocaine: a significant part of it, and the far more potent and serious dangerous drug involved, was methamphetamine.

25.  Moreover, there were 19 grammes of ketamine to be taken into account, which was hardly an insignificant amount.  Under the guidelines in Secretary for Justice v Hii Siew Cheng[12], the starting point for this quantity of ketamine alone on an arithmetical basis would have been about 4½ years’ imprisonment.  Furthermore, when used in combination with methamphetamine, it was a far more potent and dangerous cocktail.  I note that one of the plastic bags in the toiletry bag contained 25.20 grammes of a mixture containing 1.85 grammes of methamphetamine and 19 grammes of ketamine[13]. Such a combination was said in Cheung Kwok Leung to be a matter that needed “to be considered and taken into account in sentencing”[14].

26.  The ultimate question for the Court, therefore, will be whether 11 years’ imprisonment as an overall starting point for the three types of dangerous drugs being trafficked was manifestly excessive and/or wrong in principle.  As I have pointed out, this was the very starting point which counsel had advocated before the judge and the judge had accepted.  But, given the aggravating features present, namely, the applicant’s greater role than a mere courier or storekeeper, the multiplicity of dangerous drugs in which the applicant was dealing and the fact that methamphetamine and ketamine were far more potent and dangerous when taken in combination than separately, I do not think it is reasonably arguable that the overall starting point for the dangerous drugs was manifestly excessive. 

27.  The various tests by which the end result is cross-checked assumes that the individual starting points for each drug are strictly arithmetical and therefore apply to the mere courier or storekeeper at whom the guidelines are aimed.  But, on the facts, the applicant was no mere courier or storekeeper.  She was a dealer in multiple kinds of dangerous drugs: methamphetamine, cocaine and ketamine, as well as methamphetamine and ketamine in combination.  Even if one inflates the starting point, which Mr Marray would accept as a balanced starting point of 10 years’ imprisonment in accordance with the guidelines, by a modest 10% for her greater role as an actual trafficker, the result becomes 11 years’ imprisonment, which was precisely the starting point the applicant received.  And that is, of course, before there is any consideration of the Form 8 recognizance factor enhancement.

28.  As for the applicant’s Form 8 recognizance status, the applicant’s counsel at trial had submitted in mitigation that the judge would be entitled “to enhance any starting point by at least 6 months but perhaps no more than a year” for this factor[15]. That is exactly what the judge did, when he enhanced the applicant’s starting point by 9 months’ imprisonment for this factor.  I can see no arguable ground of appeal in respect of this enhancement and, to be fair to Mr Marray, he does not take issue with this aspect of the sentence.

29.  Accordingly, I can find no reasonably arguable grounds of appeal against sentence.  I might add that the judge did not add anything to the sentence by virtue of the 6 weeks’ suspended sentence passed on the applicant 16 months earlier, of which she was in breach.  He could have done so but, in the exercise of his discretion and with an eye to totality, he activated the sentence but ordered it to run concurrently with the sentence he was passing.

30.  I must therefore refuse the applicant leave to appeal.  However, I advise the applicant that she has the right to renew her application for leave to appeal to the Court of Appeal, but also warn her that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of the application.