HKSAR v. NUNAG DOMINGO MALLARI

DCCC 1306/2024

[2025] HKDC 1361

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1306 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Nunag pleaded guilty before me to four charges on a Charge Sheet as follows.

2.  Charge 1 is Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 17 May 2024, at Customs Arrival Hall, Hong Kong – Macau Ferry Terminal, Sheung Wan, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 2.48 grammes of a crystalline solid containing 2.47 grammes of methamphetamine hydrochloride.

3.  Charge 2 is Possession of poison included in Part 1 of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138.  Particulars are that he, on the same date, at the same place, in Hong Kong, had in his possession a poison included in Part 1 of the Poisons List, namely one tablet containing sildenafil, otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance, Chapter 138.

4.  Charge 3 is Importing goods to which the Dutiable Commodities Ordinance applied, contrary to sections 17(1) and 46(3) of the Dutiable Commodities Ordinance, Cap 109.  Particulars are that he, on the same date, at the same place, in Hong Kong, imported goods to which the Dutiable Commodities Ordinance, Cap 109, applied, namely one bottle of whisky and 21 pieces of dutiable cigarettes, otherwise than in accordance with the provision of paragraph (a) or (b) of section 17(1) of the Dutiable Commodities Ordinance, Cap 109.

5.  Charge 4 is Failing to declare to a member of the Customs and Excise Service, contrary to sections 34A(1) and (3) and 46(3) of the Dutiable Commodities Ordinance, Cap 109.  Particulars are that he, on the same date, at the same place, in Hong Kong, being a person entering Hong Kong at an entry point, failed to declare to a member of the Customs and Excise Service the quantity of dutiable goods, namely one bottle of whisky and 21 pieces of dutiable cigarettes, contained in his luggage which were in excess of the quantities that the Commissioner of Customs and Excise had published in the Gazette.

Facts admitted by Mr Nunag

6.  On 17 May 2024, at about 0013 hours, Mr Nunag entered Hong Kong via the Hong Kong – Macau Ferry Terminal (“HMFT”).

7.  When Mr Nunag was clearing customs at HMFT, a Customs officer intercepted him and escorted him to a nearby counter for conducting a baggage inspection.

8.  Upon inspection, Customs found a bottle of Scotch whisky (1 litre, 40% alcohol concentration) (E1) and 40 cigarettes (21 of which were seized as E2) in Mr Nunag’s luggage.  He was immediately cautioned for not making a customs declaration in relation there to.  Under caution, Mr Nunag stated that E1 and E2 were possessed for purposes of self-consumption.

9.  Upon body search, it was discovered that there was a grey coloured drawstring bag (“the Bag”) placed within Mr Nunag’s underpants.  Upon being asked about the contents of the Bag, Mr Nunag threw the Bag into his mouth.  Mr Nunag was restrained physically to prevent him from swallowing the Bag.

10.  Mr Nunag spitted out the Bag which was found to contain:

(a) Four cellotaped plastic bags containing a total of 2.48 grammes of a crystalline solid containing 2.47 grammes of methamphetamine hydrochloride (E3); and

(b) One plastic bag containing one tablet containing sildenafil, a listed Part 1 Poison.

11.  Mr Nunag was arrested on 17 May 2024.  Under caution, he admitted that E3 pertained to a type of dangerous drug “ICE”; and E4 pertained to a tablet of Viagra for his own use.

12.  A subsequent cautioned VRI was conducted with Mr Nunag in which he stated:

(a) E1 and E2 were purchased at a Duty-free Shop in Macau;

(b) He had not obtained any licenses or certificates to import E1 and E2;

(c) He did not make any declaration for E1 and E2 to any customs officer;

(d) He bought E3 from a Pakistani male in Macau for a price of HK$400; and

(e) He was a habitual user of drugs.

13.  The average market value of E3 was about $1,366 at the material time.

14.  Mr Nunag now admits that at the material time, he unlawfully trafficked in E3, by importing the same into Hong Kong.

15.  Mr Nunag now admits that at the material time, he imported into Hong Kong one bottle of whisky and 21 pieces of dutiable cigarettes which were goods to which the Dutiable Commodities Ordinance applied; he admits that he failed to declare these dutiable goods to a member of the Customs and Excise Service at the material time.

Criminal record

16.  Mr Nunag has 9 previous convictions of which 5 were for possession of dangerous drug, one was for trafficking in dangerous drug and two were for possession of Part 1 Poison.

Antecedents

17.  Mr Nunag is aged 58 (57 at the time of the offences).  Mr Nunag is divorced.  At the time of arrest, he was working as a bar manager and was living in private housing in Sai Ying Pun.

Mitigation

18.  Mr David Boyton of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Nunag.  The following is a summary of the mitigation submissions.

19.  Mr Nunag was born and educated in the Philippines (up to Grade 9).  He has seven siblings; he is the third oldest.  Two sisters and a brother have settled and taken up permanent residence in Hong Kong.

20.  Mr Nunag came to work and settled in Hong Kong in 1991.  He married around 2003/2004 and divorced in 2016.  He has a permanent HKID card.  He has three daughters from that marriage aged 24, 12, and 12 and they all live in USA.  Mr Nunag’s mother (in her 80s) lives in the Philippines.

21.  The bar at which Mr Nunag has worked as a bar manager has since become insolvent.

22.  In relation to criminal records, there was only one previous conviction for trafficking which was over 10 years old.  Mr Nunag also has 5 previous convictions for possession of dangerous drug and two previous convictions for possession of Part 1 Poison.

23.  The most serious charge is Charge 1 which must be dealt with by an immediate term of imprisonment.  Charge 4 must be dealt with by a financial penalty.  The remaining charges may have been dealt with by a financial penalty, but perhaps now, may or may not be wrong in principle, if Mr Nunag is to be sentenced to a term of imprisonment in relation to Charge 1.

24.  In relation to Charge 1, the ICE was imported into Hong Kong for Mr Nunag’s own consumption.  In this connection, his urine was found to react positively to Amphetamine, indicating he had consumed ICE prior to arrest.

25.  Mr Boyton referred to the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as modified by HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

26.  The trafficking in 2.47 grammes of ICE falls into the lowest tariff band, namely for up to 10 grammes of narcotic: 3 to 7 years’ imprisonment: HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138; Attorney General v Ching Kwok Hung [1991] 2 HKLR 125; HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

27.  Adopting a mathematical approach, the starting point for 2.47 grammes of ICE would be around 3 years and 11 months’ imprisonment.

28.  Since the drug was imported for Mr Nunag’s own use, there is no need to adjust the mathematical starting point upwards on consideration of Mr Nunag’s role and culpability.  In this connection, it was submitted that importation for self-use does not “fuel the local drug market” (see Lee Ming Ho at 1218 where a passage in Zervos JA’s judgment of HKSAR v Fong Yau Heung [2022] 2 HKLRD 99 at para 23 was quoted with approval).

29.  Mr Nunag asserts in relation to Charge 1 that the entire amount of the dangerous drug was for his self-consumption.  For this, he should be entitled to a 25% sentencing discount (R v Chan Mung Lung [1992] 2 HKCLR 127, 130; HKSAR v Mak Wai Ming [2012] 2 HKLRD 418; HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121).

30.  For Charges 2 to 3, they would normally be dealt with by way of a fine, particularly because of the small quantities involved.  However, it may or may not be wrong in principle to impose a lengthy term of imprisonment and a financial penalty in the same case.  The court may consider imposing short terms of imprisonment instead and order they be served concurrently with the sentence on Charge 1.

31.  Mr Nunag pleaded guilty in good time and should be afforded a 1/3 discount.

32.  Mr Boyton reminded the court of the totality principle.

33.  Mr Boyton submitted two mitigation letters written in English respectively by Mr Nunag himself and one of his sisters.  The contents generally are that Mr Nunag is really sorry for what he has done.  The letter writers asked the court for leniency and a last chance be given.

34.  Upon enquiry, Mr Boyton told the court that there is money to the tune of $3,000 odd in the prisoner’s property available for payment of a fine.

Sentence

35.  Prosecution confirmed that they would not pursue an additional sentence under section 46(2) of the Dutiable Commodities Ordinance, Cap 109.

36.  In relation to Charge 1, prosecution did not dispute that the dangerous drug was entirely for Mr Nunag’s own consumption.

37.  I am of the view that importation of drug for the purpose of self-consumption does not trigger the “international element” sentencing consideration.

38.  I will adhere to the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

39.  For Charge 1, I adopt an initial starting point of 4 years (by rounding up the decimal places in the arithmetical starting point).  For the fact that the drug was entirely for Mr Nunag’s self-consumption, I reduce that starting point by 25% to reach an intermediate starting point of 3 years.  Mr Nunag is a repeated offender of dangerous drug related offences (including one for trafficking); for the reason of increasing the deterrence on him, I will increase the intermediate starting point by 3 months to reach the final starting point of 3 years and 3 months’ imprisonment.

40.  For Charge 2, the maximum penalty is a fine of $100,000 and 2 years’ imprisonment.  Mr Nunag already has two previous convictions for the same offence with one as recent as 2021.  In order to increase the deterrence on him, I will impose an imprisonment sentence.  I adopt a starting point of 15 days’ imprisonment.

41.  For Charge 3, the maximum penalty is a fine of $1 million and imprisonment for 2 years.  I could impose a fine but decided against it because Mr Nunag is going to serve a rather substantial term of imprisonment already. In the premises, I will simply impose a short term of imprisonment.  I adopt a starting point of 12 days’ imprisonment.

42.  For Charge 4, the maximum penalty is a fine of $2,000.  There is no provision for an imprisonment penalty.  Taking into account the plea of guilty, and given Mr Nunag is going to serve a term of imprisonment for the other charges, I will simply impose a fine of $200 on him.

43.  Mr Nunag pleaded guilty in good time earning for himself the customary 1/3 sentencing discount on prison terms.  I can see no other mitigating factors of substance to warrant another sentence reduction.

44.  Although the offences subject of Charges 1 to 3 took place at the same place and at the same time, they were separate and distinct offences.  One was not concomitant to the others.  In principle, they ought to attract consecutive sentences.  However, I will bear in mind totality when considering the final aggregate sentence for Mr Nunag.

(Mr Nunag, please stand)

45.  For Charge 1, the sentence is 2 years and 2 months’ imprisonment.

46.  For Charge 2, the sentence is 10 days’ imprisonment.

47.  For Charge 3, the sentence is 8 days’ imprisonment.

48.  For Charge 4, the sentence is a fine of $200 to be paid from prisoner’s property within 7 days.

49.  I order that 3 days of the sentence on Charge 2, and 2 days of the sentence on Charge 3, are each to run consecutively to the sentence on Charge 1, making a final sentence for Mr Nunag of 2 years 2 months and 5 days’ imprisonment.

50.  I am satisfied that final prison term is fair, just and balanced having regard to the circumstances of the offences and the offender.