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DCCC 1127/2023
[2024] HKDC 1828
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 1127 OF 2023
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HKSAR |
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v |
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LOBO THELMA ANTONIO |
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| Before: |
Deputy District Judge Amy Chan |
| Present: |
Mr Davies Oliver Howell, counsel-on-fiat, instructed by Department of Justice |
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Mr Whitehouse Frederic Charles, instructed by Tse Yuen Ting Wong, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] Trafficking in a dangerous drug（販運危險藥物） |
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[2] Possession of a dangerous drug（管有危險藥物） |
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[3] Possession of apparatuses fit and intended for the inhalation of a dangerous drug（管有適合於及擬用作吸服危險藥物的器具） |
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[4] Breach of condition of stay（違反逗留條件） |
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REASONS FOR SENTENCE
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1. The defendant (”D”) pleads guilty to the following charges:
(a) Trafficking in a dangerous drug, namely 5.48 grammes of methamphetamine hydrochloride (“ICE”) (Charge 1);
(b) Possession of a dangerous drug, namely 0.4 grammes of ICE (Charge 2);
(c) Possession of apparatus fit and intended for the inhalation of a dangerous drug, namely 2 segments of plastic tubes (Charge 3); and
(d) Breach of condition of stay (overstaying) (Charge 4).
The Facts
2. On 31 May 2023, D walked out from the main entrance of No 12 Tit Hong Lane in Central. Police intercepted D and entered with D’s keys to her rented flat on the second floor of the same building (“the Premises”) with a search warrant.
3. Police found 10 transparent resealable plastic bags containing a total of 5.48 grammes of a crystalline solid containing 5.48 grammes of ICE (Charge 1) on the windowsill near a bed in the Premises.
4. Police also found from a storage rack above the bed 0.39 grammes of ICE (Charge 2), 2 segments of plastic tubes containing traces of ICE (Charge 3), an electronic scale, and 30 transparent resealable plastic bags.
5. Police conducted a body search on the D and found $3,800 cash on her.
6. The total estimated retail price of ICE in May 2023 for Charge 1 was $3,277 and for Charge 2 was $233.
7. The two segments of plastic tubes is apparatus fit and intended for the inhalation of ICE.
8. According to D’s conditions of stay, she was only permitted to enter and remain in Hong Kong as a domestic helper until 26 November 2013. She has overstayed in Hong Kong from 26 November 2013 to 31 May 2023 for around 9.5 years.
Mitigation
9. D is 58 years old, clear record, a widow with three adult children. She came to Hong Kong as a domestic helper in 2012. After the termination of the employment contract, she overstayed for 9.5 years.
10. She “survived” by doing part-time work (albeit illegal) and she also had some assistance from a boyfriend in the United States. She had lost contact after so many years with her family in her home country.
11. D was lured into drug trafficking by a female friend but D does not want to identify and incriminate her.
12. Mr Whitehouse for D suggests a lenient approach of a starting point of 4 years’ imprisonment for Charge 1, though not mathematically precise, and have the sentence of Charge 2 and 3 to run concurrently to that of Charge 1.
13. As for Charge 4, D had lost contact with her home, family and country and regards Hong Kong as her home. Mr Whitehouse agrees that this charge needs to be sentenced separately with the drug offences. He suggests that a 6 months consecutive sentence is fair and appropriate.
Sentence
14. According to the sentencing guidelines laid down in HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Tam Yi-chun [2014] 3 HKLRD 691, trafficking of up to 10 grammes of ICE is 3 to 7 years imprisonment. According to arithmetic calculation, the starting point of trafficking of 5.48 grammes of ICE is 62 months imprisonment.
15. Having taken into account the whole circumstances, the starting points for Charge 1: 62 months; Charge 2: 6 months; Charge 3: 6 months; and Charge 4: 9 months.
16. For Charge 1, D pleaded not guilty and a trial had been fixed for today. She informed the court days ago that she would change her plea to guilty. As a result, she would only be entitled a 25% discount upon her plea: see Ngo Van Nam.
17. For Charge 2-4, D pleaded guilty at the earliest opportunity, she would be entitled to the normal one third discount from the starting point.
18. After reduction, the sentence for Charge 1: 46.5 months; Charge 2: 4 months; Charge 3: 4 months; and Charge 4: 6 months.
19. In my view, the conduct of drug trafficking impacts adversely on the community. In terms of humanitarian reasons, the family circumstances of D is of little significance.
20. Apart from above, there is not anything of substance which would justify a further reduction.
21. The immigration offence of overstaying is a separate and distinct offence from the drug offences, the sentence of which should be run totally consecutive to the latter: HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710.
22. Bearing totality in mind, a total term of 50 months should adequately reflect the overall criminality of the four offences. I order the sentences for Charges 1 to 3 to run concurrently with each other and 3.5 months of Charge 4 to run consecutively to that of Charge 1. The total sentence that D has to serve is one of 50 months’ imprisonment (46.5 + 3.5).
23. For the above reasons, D is sentenced to 50 months’ imprisonment.
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( Amy Chan ) |
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Deputy District Judge |
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