COURT: The defendant pleaded guilty to two charges of trafficking in dangerous drugs before a magistrate on 10 February this year. The 1st charge alleged that on the 14th day of July, 2023, at Room 1 of Flat D4, 2nd Floor, Tsim Sha Tsui Mansion on Nathan Road, she unlawfully trafficked in 52.17 grammes of ‘Ice’ narcotic and 339.72 grammes of cocaine narcotic. The 2nd charge alleged that on the same day, at Room 2 of the same flat, she unlawfully trafficked in 26.32 grammes of cocaine narcotic and 12.3 grammes of MDMA which is commonly known as ‘Ecstasy’.
According to the Summary of Facts to which she agreed at the time of her plea, at the material time the police officers put the particular flat under observation by monitoring the CCTV in the evening of 14 July 2023. They saw an African male and a South Asian female entering the rear staircase on the 2nd Floor of Block C at 8.20 pm. At the same time, the defendant exited from Room 1 of the flat and entered the rear staircase to meet up with them.
At about 8.25 pm, all three of them were intercepted by the police at the rear staircase. The defendant had a bunch of five keys in the right pocket of the jeans and a blue string with four keys on her neck.
The defendant was escorted back to Room 1 for a search and because she refused to open the door, a forcible entry was made into the room. The room was about 100 square feet in size and it had a toilet. There was nobody inside the room at the time.
The police was able to open a locker cabinet in the room with the five keys found in the defendant’s jean pocket. From the locker cabinet, the police found a total of nine plastic bags containing all the drugs particularised in the 1st charge; a notebook with handwritten notes dated from 23 June to 12 July 2023, words like ‘Coke’ and ‘Water’, calculations and figures which represented total weights of ‘Coke’ and ‘Water’ marked under different dates. There were also two electronic scales, a pen, a pair of scissors, an electronic scale, a large amount of empty transparent resealable plastic bags and cash of HK$17,760.
At about 10.04 pm on that evening, the defendant was escorted to the neighbouring Room 2 of the flat for a further search. The police opened the room door with the keys found on the neck of the defendant. That room was also about 100 square feet in size and it had a toilet. Upon search, only the defendant’s Form 8 recognisance was found. With the assistance of a police dog, the police were able to find at a wooden cabinet near the door a blue-green bag containing nine plastic bags containing all the drugs particularised in the 2nd charge.
The defendant was arrested for the offences of trafficking in dangerous drugs. In the video-recorded interviews conducted on 15 July 2023, she stated that she was a Filipino who came to Hong Kong in about 2012 or 2013 to work as a domestic helper. After she finished her last contract in 2016, she became a Form 8 recognisance holder. She said she was educated in the Philippines up to university level. She was single and she had a daughter who was aged 5. She said she was unemployed and relied on subsidies from the government and the ISS. She said at the material time she went to the Tsim Sha Tsui Mansion to look for her friend Sheila.
Police investigation revealed that the CCTV footage outside the flat captured that between 7.13 pm and 8.17 pm on 14 July 2023, the defendant had entered and exited Room 1 and Room 2 multiple times, and she had once exited Room 1 with a girl and entered Room 2 together with that girl.
Her urine test conducted on 19 July 2023 revealed a positive finding for the drug of cocaine.
As at July 2023, the estimated street value of all the ‘Ice’ involved was HK$30,474 and the estimated street value of all the cocaine involved was HK$484,600 if in powder form or $538,243 if in crack form.
The defendant now accepts and admits that at the material time, she knowingly possessed all the drugs particularised in the 1st and the 2nd charges for the purposes of unlawful trafficking.
The defendant is now 39 years of age. She is a Filipino and she is a Form 8 recognisance holder. She has no previous criminal convictions in Hong Kong or in the Philippines. She has received up to university education standard and she was unemployed at the time of her arrest. Even though she informed the police that she has no drug addiction, according to the urine test stated in the Summary of Facts she had been tested positive for cocaine on 19 July 2023. So she was a drug abuser at the material time.
In mitigation, counsel Mr Andrew Bullett informed me that the defendant arrived in Hong Kong around 2012 and she worked as a domestic helper until she became pregnant in around 2016. Then she became a Form 8 holder. She gave birth to her daughter in 2018.
Counsel informed me that her role was simply one of a storekeeper that is at the lowest level of the drug trafficking hierarchy. Counsel informed me and submitted documentation to prove that she also has a clear record in the Philippines.
I was informed that she had participated in Father Wotherspoon’s anti-drug campaign and a letter prepared by the Father dated 13 April this year was submitted to this court. According to this letter, Father said that the defendant had provided or shared information about the people who recruited her and he had forwarded those information to the authorities in Hong Kong. Father also said that she shared information which he could use in several seminars and the information was about the activities of Nigerian drug dealers socialising with vulnerable domestic helpers who had become asylum seekers in Yuen Long.
However, the information provided to me about her participation in Father Wotherspoon’s programme was indeed quite general and I am unable to see that there was any useful result arising from those information. And, if I may say, I am not informed of any concrete or updated result of the information that she provided.
Counsel also informed me that she provided some information to the authorities but they turned out to be not useful at all. I was informed that around 19 December 2024, that is almost 1½ years after her arrest, she had provided some names and telephone numbers to the authorities.
The prosecution confirmed that the information provided were of no practical use at all because they were not first-hand information. They were only information that she heard from other people. For example, names of the so-called people involved in drug activities, and she herself did not witness or had any first-hand information about any drug activities at all. She was unable to give information as to where drugs were stored or the details of any other drug trafficking activities. So I form the view that all the information she provided, not to mention at such a late stage, indeed was not useful to the authorities at all.
I am unable to determine from the information before me whether she had made any meaningful contribution to Father Wotherspoon’s programme as a result of her participation, even though the Father used some of the information she shared in some seminars.
While the Court of Appeal said in the case of HKSAR v Kilima [2018] 5 HKLRD 88 that a sentencing judge has a discretion to allow a token discount of no more than 3 months for participation in Father Wotherspoon’s campaign, the Court of Appeal also expressed the view that this is a matter that the Executive is better equipped to perform.
Having considered all the information provided to me by the defence and also the result of the so-called assistance or information provided by the defendant, I take the view that it is not appropriate for me, at this stage, to exercise my discretion to order any further discount for the defendant’s participation in Father Wotherspoon’s programme. Also because of the fact that no useful information was provided by her to the authorities, she does not warrant any further discount on that matter.
In respect of her continued participation in Father Wotherspoon’s programme, if any, the matter should be left for the Executive to address. So I do encourage her to continue her participation in the campaign in due course. It would be better for the Executive to assess the degree and the effectiveness of her contribution if there is any. So I will not give her any further discount at this particular stage.
In sentencing the defendant for the two charges, I do bear in mind the approach laid out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as clarified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
There are altogether two charges in the present case. I bear in mind the principles stated in the case of HKSAR v Wan Lau Mei [2014] 4 HKC 75, in that a sentencing judge should regard two offences where different quantities of dangerous drugs were found in the defendant’s possession on the same day but at different locations, they should be regarded as representing one occasion of possession of the total amount of the drugs and to impose sentences on both offences for that total, making the sentences concurrent with one another. Such an approach would more truly reflect the defendant’s culpability as the reality of the situation was that on the day of the charges she was in overall possession of all the drugs found in both locations. That would be the approach I adopt in this matter.
On the sentencing guideline, to sentence the defendant on the individual approach would result in a very high sentence that does not properly reflect the justice of the case because in this case altogether 366.04 grammes of cocaine narcotic, 52.17 grammes of ‘Ice’ narcotic and 12.3 grammes of ‘Ecstasy’ narcotic were involved. To add up the sentencing guideline for those amount of narcotic for cocaine, ‘Ice’ and MDMA, it would result in a sentence of around 28 years of imprisonment if the individual approach is adopted. That is why I consider that it is too high and does not reflect the justice of the case.
So, in order to achieve a reasonable and realistic sentence, I will adopt the combined approach which involves upward adjustment from the starting point of the base drug.
In the present case, ‘Ice’ is the more serious drug in terms of its potency and the sentencing tariff. However, cocaine made up a significant proportion of the total of the drugs. In respect of the total quantity, around 85 per cent of the drugs were cocaine. So I will adopt cocaine as the base drug instead of ‘Ice’.
In determining the upward adjustment for the remaining ‘Ice’ and ‘Ecstasy’ narcotic, I will examine the overall starting point by checking the starting point for trafficking in 366.04 grammes of cocaine narcotic against the absurdity test, the conversion test and the ratio test.
According to the absurdity test, if all the drugs seized were cocaine, then the starting point would be one of 15 years and 1 month’s imprisonment. If all the quantity of the drugs were ‘Ice’, then the starting point would be 16 years and 3 months’ imprisonment.
Under the conversion test, treating all the drugs as cocaine would result in a starting point of 15 years and 10 months’ imprisonment. Treating all the drugs as ‘Ice’ would result in a starting point of 15 years and 1 month’s imprisonment, and treating all the drugs as ‘Ecstasy’ would result in a starting point of 15 years and 9 months’ imprisonment.
Under the ratio test, the starting point would be one of 15 years of imprisonment.
Having taken into account of all the circumstances, and after assessing the role and the culpability of the defendant in this case, I consider that the appropriate starting point after trial should be one of 16 years’ imprisonment. That is after taking into account the fact that altogether three kinds of dangerous drugs were found, ‘Ice’, cocaine, and ‘Ecstasy’. That means she had the ability to cater to a wider market and also there was a higher effect on the users of the combination of the drugs. So, in view of that matter, after assessing her role and culpability and taking into account the multiple drugs, the proper starting point should be one of 16 years’ imprisonment.
I shall now come to the personal circumstances of the defendant. She was a Form 8 holder at the time of the offences and as such her sentence was aggravated. I would add a total of 18 months to the starting point, making the starting point a total of 17½ years’ imprisonment.
As I have said, her so-called assistance to the authorities was totally useless and her participation in Father Wotherspoon’s programme should be a matter to be assessed by the Executive in due course. So the only valid mitigation factor is her early plea of guilty to the charges. As such I will give her a full one-third discount. So her sentence for the two charges is reduced to that of 11 years and 8 months’ imprisonment. 11 years and 8 months is the sentence imposed for the total of the two charges.
Adopting the principles stated in the case of Wan Lau Mei, I will sentence her to 11 years and 8 months for each of Charge 1 and Charge 2, and I will order the sentences in the two charges to run totally concurrent to each other. So the ultimate sentence is also 11 years and 8 months’ imprisonment.