HKSAR v. GLEN LORENA TRINIDAD

DCCC1044/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1044 OF 2009

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Reasons for Sentence

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1.  The defendantpleaded guilty to a charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

Facts of the case

2.  The defendant was intercepted at the Hong Kong Airport for customs clearance at the Customs Arrival Hall when she arrived from Manila, the Philippines. Upon her baggage check, PW3 found an electronic scale and a white plastic bag, Exhibit (E1), inside a brown leather bag carried by the defendant.

3.  Inside E1, PW2 found the following items:

(a) one plastic bag containing l.47 grammes of a powder containing 1.46 grammes of methamphetamine hydrochloride together with one plastic bag;

(b) one plastic cup containing 0.01 gramme of a crystalline solid containing methamphetamine hydrochloride;

(c) one glass dish containing 0.11 gramme of a powder containing 0.11 gramme of methamphetamine hydrochloride;

(d) one broken glass containing 0.35 gramme of a powder containing 0.34 gramme of methamphetamine hydrochloride;

(e) one plastic tube containing traces of methamphetamine.

4.  PW2 went on to open a black backpack and he found a transparent plastic bag (E2) and a metal box (E3) inside. Inside E2, PW2 found the following items:

(a) one piece of paper containing 5.15 grammes of a crystalline solid containing 5.13 grammes of methamphetamine hydrochloride;

(b) one piece of paper containing 2.45 grammes of a crystalline solid containing 2.42 grammes of methamphetamine hydrochloride;

(c) one plastic bag containing 0.44 gramme of a crystalline solid containing 0.44 gramme of methamphetamine hydrochloride;

(d) one plastic bag containing traces of a crystalline solid containing methamphetamine hydrochloride;

(e) seven pieces of aluminium foil;

(f) one plastic spoon; and

(g) one wooden toothpick.

5.  Inside E3, PW2 found the following items:

(a) one plastic bag containing 4.18 grammes of a crystalline solid containing 4.16 grammes of methamphetamine hydrochloride;

(b) one plastic bag containing 4.16 grammes of a crystalline solid containing 4.14 grammes of methamphetamine hydrochloride; and

(c) one plastic bag containing 22.97 grammes of a crystalline solid containing 22.68 grammes of methamphetamine hydrochloride.

6.  PW4 arrested and cautioned the defendant. She admitted that the drugs seized were all “ice” ,but she denied ownership of them. Defendant claimed that it was her sister who had packed the luggage for her. The defendant further admitted that she had consumed “ice” in the Philippines four times before.

7.  In a subsequent video-recorded interview, defendant remained silent.

8.  The total weight of Ice seized is 40.88 grammes.

9.  At the material time, defendant knew she had the said dangerous drugs in her luggage.

Criminal record

10.  The defendant has one conviction in 1994 for using forged travel document and she was sentenced to 6 months, suspended for a period of 2 years.

Mitigation

11.  Given the nature of the case, Mr Harris who represents the defendant has eloquently mitigated on her behalf extensively. The mitigation covers mainly the defendant’s background and her rehabilitation life after the arrest.

12.  I also called for a DATC report. The content of which was very much the same as said by Mr Harris.

13.  The defendant is a Filipino and she is 35 years old, married to an expat in Hong Kong in 1996. They have two young children. The family lives in Hong Kong as her husband works in Hong Kong.

14.  In 1993 the defendant’s father was murdered and left her mother and three of her other siblings behind. The defendant then quitted schooling in order to find a job to support her family. I was told that the conviction in 1994 was related to her intention to work as a waitress in Hong Kong. When she arrived Hong Kong, she found out that it was a vice establishment instead of a restaurant.

15.  In 1996 she got married and eventually settled in Hong Kong. Her husband provided her with a steady monthly allowance of $5,000 for her own expenses, and the $5,000 went to finance her drug habits. That was the taking of ice. At the time of this offence, she has been a drug addict for 15 years.

16.  Mr Harris placed heavy emphasis on the fact that the defendant has been drug-free since the time of her arrest. It was also confirmed by the DATC report that she is not a drug dependent and she is not recommended to be admitted to the DATC.

17.  Since the arrest, the defendant has also received treatment from Dr Moran who is specialized in the field of alcoholism and the other drugs addiction. In a nutshell, Dr Moran said that all the urine test results taken from the defendant were drug-free. He also said that the defendant’s husband has been very supportive to her. Dr Moran said that the defendant still needs a further 12 months’ monitor programme.

18.  Apart from attending Dr Moran’s out-patient and in-patient clinic for treatments, the defendant also attended the meetings of Narcotics Anonymous three times a week as well as meetings of Alcoholic Anonymous on other days of the week. Dr Moran recommended that the defendant continued to attend these meetings daily for another 12 months and at least for a minimum period of 2 years to attend the Narcotics Anonymous meetings.

19.  The drugs concerned are, as appears in the charge sheet:-

1.93 grammes of a powder containing 1.1 grammes of Ice;

39.35 grammes of a crystalline solid containing 38.97 grammes of Ice.

20.  Dr. Moran said these drugs would last the defendant for two to three weeks. I also notice that the purity of these drugs is extremely high.

21.  The defendant told Dr. Moran that to buy in bulk was cheaper and also faced less risk as compared to buy in small quantities for more times.

22.  In mitigation, I was told that the defendant travelled to Manila with her sons and her husband in Easter this year. The family returned in Hong Kong while she stayed behind to keep an eye on the decoration work of the family’s apartment in Manila. On 9 May 2009 the defendant returned to Hong Kong for a few days to celebrate the Mother’s Day.

23.  In mitigation, it was further told that the defendant had contacts in Hong Kong to purchase drugs from local drug suppliers. She knew that there was a great risk to buy drugs in all kind of circumstances. The proper and the only reasonable inference will be she equally knows to import or to bring ice to Hong Kong, she has to go through the Hong Kong Customs, the risk is even higher than buying in Hong Kong. She has been a drug addict for 15 years, surely there were many times that she brought drugs in Hong Kong, but she was never caught in Hong Kong before.

24.  Any ordinary person would know that to bring drugs into Hong Kong is a serious offence. For a drug addict, the issue is even more sensitive. Further, the quantity of the drugs can last the defendant for a period of two to three weeks. Dr. Moran at one time said in the witness-box that the drug can last her for a month, but her intention to stay in Hong Kong is only a few days.

25.  The question to ask: why did she bring such a large quantity of ice to Hong Kong when she had contacts in Hong Kong to purchase those drugs and at the same time faced less risk?

26.  The street value of the drugs is about $25,000. This is the information provided by the prosecution.

27.  The defendant has $5,000 per month as allowance to spend. There is still a deficit of $20,000. Where does she get the rest of the money to finance her drug habit?

28.  Her husband claimed that he did not know the defendant takes drugs despite the fact that Dr Moran’s report says the defendant needs to take drugs between a range of 5 to 6 and 8 to 10 times a day. She also commonly stays up for 48 hours without sleep twice a week. This is a very unusual habit for a normal housewife.

29.  In the DATC report she told the officer that the drugs were purchased in bulk for $7,000 for half an ounce. By way of conversion, 40.88 grammes of ice was about $20,000.

30.  She also said that she brought the drugs with her to Manila and brought back the remaining portion to Hong Kong. The 40 grammes of ice were for a period of two to three weeks.

31.  She has been in Manila for about a month since Easter to 9 May 2009. That means she has taken at least 80 grammes of drugs to Manila; she needs at least $40,000 to purchase these drugs. There is a high risk that these drugs would go into the wrong hands and be redistributed again in the society.

32.  In the case of Ching Kwok Hung [1991] 2 HKLR 125, this is the key tariff case in laying guideline for trafficking in ice, for the quantity involved in the present case, it falls into a sentencing bracket of 7 to 10 years, and it should be a case in the High Court’s jurisdiction. However, the defendant is not charged with trafficking and the guideline is therefore not applicable in the present case. But it all goes to show that the Hong Kong courts in sentencing for those who are trafficking in ice for a very long period of time and the courts take a very serious view in sentencing.

33.  What about possession of Ice in such a large quantity? In the following cases the applicants were all found Ice in their homes or outside their residence:

Chan Yat sing	CACC 777/1997	ICE	95.37 grammes	3.5 years
Lau Chi Chiu	CACC 395/1997	ICE	63.38 grammes	2 years
LAI Kam sang	CACC578/1998	ICE	26.61 grammes	20 months

34.  In the case of Chan Yat Sing, the court says that 12 months to 18 months is the acceptable range of starting point, then the court should proceed to consider the latent risk factor to enhance the sentence.

35.  In Wan Sheung Sum CACC438/1999, the Court of Appeal laid down the three steps approach in sentencing for this kind of offence.

36.  Mr Harris suggested a suspended sentence could be imposed in the present circumstances because the defendant has kicked off her drug habit, she has a supportive family and she has been detained for a period of 23 days, 10 days after the arrest and 13 days for the DATC report.

37.  Whether it is a lenient sentence or a suspended sentence will definitely send a wrong message to the public, let alone the quantity involved is 40.88 grammes and the drugs were brought from overseas to Hong Kong. To pass this kind of sentence is manifestly inadequate to reflect the criminality as a whole and also wrong in principle. For this kind of offence, a sentence of punishment and deterrence is necessary.

38.  To this end and against this background, and bearing in mind all the mitigating factors, I adopt a starting point of 18 months and enhance the sentence by another 100 per cent because of the latent risk factor, as it is a very serious one. That means 18 months plus 18 months, it becomes 36 months.

39.  In view of the defendant’s guilty plea, the customary one-third discount, the sentence comes down to 2 years.