HKSAR v. CABELLO MARIA ELDHA ROSE JONSON

DCCC 371/2023

[2024] HKDC 961

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 371 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to three charges on this indictment, the 1^st charge being trafficking in a dangerous drug, that is on 2 September 2022 in Wanchai, trafficking in 2.56 grammes of cannabis in herbal form. The 2^nd charge is again trafficking in dangerous drugs on the same day in a hotel room in Wanchai, trafficking in a number of drugs, cannabis in herbal form, cannabis resin, THC in both solid and liquid form, methamphetamine, currently known as Ice in both tablet and solid form, also small quantities of cocaine, lysergide or LSD and a small quantity of psilocin. The final charge is one of breach of condition of stay. The defendant was present in Hong Kong as a domestic helper. She had outstayed her permission in respect of that. The defendant, as I say, pleaded guilty to all these charges.

2.  The facts are helpful and have been admitted.  They show that on 2 September 2022 police officers were conducting patrols in the Lockhart Road, Wanchai area.  In summary, the defendant was seen to take part in a transaction of drug trafficking where the 2.56 grammes of cannabis was sold to a person called Mr Bercher(?)  and his girlfriend for what appears to be a sum of about $300.  The defendant was arrested for trafficking in a dangerous drug and later taken to Room 9 of the Ming Court Hotel where both a search of the defendant took place and a search of a number of locations and items within the room. There was a search of a suitcase, recycling bag, drawstring bag, a further two pink plastic bags, both a yellow and a white plastic bag, and in summary the drugs found in the 2^nd charge were located there.  Sums of money were located and also items that could be used in the trafficking of those drugs such as electronic scales, further resealable plastic bags and foil packages.

3.  The defendant made admissions under caution, admitting the sale of the drugs to Mr Bercher, admitting that she was acting in the business, as it were, of providing the drugs to others and trafficking in those drugs that were found in the room.  She also admitted that she had breached the condition of her own stay.  The condition of stay was that the defendant would leave Hong Kong 14 days upon the expiration or premature termination of her domestic helper contract.  Her contract had been prematurely terminated on 16 June 2022.  No extension of stay had been approved and on 2 September 2022 the defendant was still in Hong Kong without permission of the Director of Immigration which is a period of about three months.

4.  As far as the drugs that were found, a value has been assigned to them by the Narcotics Bureau.  In respect of the 1^st charge, the drugs that were sold for $300, it appears the Narcotics Bureau valued them at $445.44 but in any event I will accept the other valuations.  I am told that the drugs both in charge 1 and charge 2 were given a total value of $29,535.88 all for sale which seems to be on the face of it a correct sum.

5.  Although those deal with the facts on which sentence will be based, I deal with the defendant’s background.  She is age 35.  Obviously at the time of making her antecedent statement she was then unemployed but she had been employed as a domestic helper in Hong Kong.  She has family in the Philippines.  She is married and has a son and daughter and I have seen and read letters from her husband and others who know her which speak well of her. Clearly the court must be sensitive to the fact that she is a mother and her children require her presence.

6.  I deal with the other matters that I will take into consideration here. The first two counts of trafficking in a dangerous drug, the 1^st charge being that of trafficking cannabis in herbal form and the 2^nd charge relating to what appears to be a cocktail of various drugs in various quantities.  As far as bearing in mind the approach to sentencing, firstly, the defendant’s personal circumstances are that she is of clear record, and secondly, that she has indicated a plea of guilty to these charges from an early stage having made full admission and those mitigating factors will be taken into account in the final sentence.  She will be entitled to one-third discount from any starting point for sentence.

7.  I deal with the approach to the 1^st and 2^nd charge. There are a number of authorities that are now relevant to the determination of sentencing in the case of trafficking in a dangerous drug.  The approach to sentencing is governed by guidelines which set out a range within which a sentence should normally be imposed.  There is an overall consideration and more recently the case of HKSAR v Herry Jane Yusuph which is [2020] HKAC 974 and that enjoins me to see that the goal of sentencing guidelines is to achieve reasonable consistency in general and justice in this specific individual case.  They are not to be seen as straightjackets and will cater for a discretionary element.  It is clear that the approach to sentencing must not be devoid of discretion and a starting point based on quantity alone is not the correct approach.  I must consider the defendant’s role as part of the circumstances of sentencing and the court retains an important element of discretion.  Yusuph sets out a six step approach to sentencing and I will note that the final step is to observe that the sentence passed is fair, just and balanced in all the circumstances of the offence.

8.  Dealing with the individual drugs that are found in the 1^st and 2^nd charges, the 1^st charge consists of an amount of 2.56 grammes of cannabis in herbal form.  The 2^nd charge also has 143.22 grammes of herbal cannabis, 105 grammes of cannabis resin, 4.38 grammes of THC in solid form of 0.44 grammes of THC in liquid form.  In the cases of HKSAR v Dang Hung Ngoc CACC 217/2019, the court equated cannabis in herbal form with cannabis resin and where the amount below 2,000 grammes of cannabis in herbal form or cannabis resin are trafficked the starting point would be 16 months.  So we are dealing with much smaller amounts, 2.56 grammes in the 1^st charge and 256.1 grammes in the 2^nd charge.

9.  However, in the 2^nd charge there are also 2.72 grammes of Ice in tablet form and 5.22 grammes of Ice in solid form.  The starting point for methamphetamine guidelines can be found in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, where the starting point for sentence is between 2 to 4 years for an amount between 1 to 10 grammes.  The same starting point for sentence also appears to be appropriate to the drug psilocin.  There is 0.21 grammes of psilocin and if the Ice and psilocin are added together that would be a total of 8.15 grammes of that substance which clearly puts it within the 2 to 4 years range of sentencing and would more particularly put that in a general range of sentencing of between 3 to 4 years’ imprisonment. 

10.  There is also some LSD present, I must consider that when sentencing, and also 0.54 grammes of cocaine.  The sentencing guidelines for trafficking in both heroin and cocaine are the same and can be found in the case of R v Lau Tak Ming & Others at [1992] HKLR 370.  That states that where between a figure of zero to 10 grammes of heroin or cocaine is trafficked the appropriate starting point is between 2 to 5 years’ imprisonment and so a figure of 0.54 grammes of cocaine would lead to a sentence somewhere of around 2 years’ imprisonment.

11.  The sentencing here must take into account that I am dealing with a cocktail of drugs which are generally acknowledged in those circumstances that there are two approaches the court can take.  One could take the individual approach which is simply add up the various sentences and impose a combined sentence based on that.  That would usually lead to an excessive sentence and would do so in this case.  It is more normal to follow the combined approached as set out in HKSAR v Yip Wai Yin & Others [2004] 3 HKC 367, that would be the court would take one of the drugs as a base for sentence and that is normally described as the more serious of the drugs or more potent of the drugs and then make an upward adjustment to take into account the presence of any other drug.  In this case it is clear that Ice is the most serious or most potent drug and it would be incumbent on the court to take that as the baseline drug for sentencing and make adjustments for the other drugs that were present.

12.  I also bear in mind the court’s decision in HKSAR v Chan Yuk Leong at CACC 318/2013 which sets out three separate tests when the court determines the appropriate method for the starting point.  They are the “absurdity test”, the “conversion test” and the “ratio test”.  I bear in mind that authority when determining the starting point for sentence in respect of this particular case.

13.  And also one other factor to consider when determining the appropriate level of sentencing is that a cocktail of drugs is in itself an aggravating factor and can lead to an enhancement of the starting point of sentence.

14.  However, I must also consider that when determining starting points for sentence, especially in smaller quantities of drugs for trafficking that the starting points for smaller amounts are often weighted in favour of deterrence and the court must be aware of that when determining the appropriate starting points.

15.  I have indicated at this stage that the baseline drug that I will consider in this case is Ice and also psilocin in a figure of just over 8 grammes.  That would be put it within a range of sentencing of 3 to 4 years’ imprisonment.  Determining the final starting point for sentence in respect of this, I have also taken into account the presence of other drugs, namely the cannabis and also the LSD and cocaine and also the fact that this is a cocktail of drugs.

16.  Bearing in mind the instructions of the case of Yusuph, I have decided on an overall starting point in respect of the 2^nd charge, which is the most serious charge, should be one of 42 months’ imprisonment.  After deduction for the defendant’s plea of guilty, that would lead to a sentence of 28 months’ imprisonment.

17.  In respect of the 1^st charge, the defendant trafficked in a small quantity of herbal cannabis.  I take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for her plea of guilty.

18.  Also, in respect of charge 3, defendant’s overstay for some three months, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

19.  Having regard to the overall totality, I bear in mind the defendant’s personal position, she is a Filipino resident, she is a married woman with children.  I consider an overall sentence of 28 months’ imprisonment to be appropriate so I will order all sentences to be served concurrently.