HKSAR v. CATHERINE J GRISHAM

 DCCC698/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 698 OF 2009 

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Reasons for Sentence 

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1.  The defendant has pleaded guilty to six charges in total, two charges of trafficking in a dangerous drug and four charges of breach of a deportation order.  The defendant has accepted the facts and I have convicted her of those offences.

2.  The facts show that the defendant was arrested on 20 April 2009 in possession of a small quantity of “Ice”.  She was then taken back to a room where she was residing and a further quantity of “Ice” was found there.  The defendant admitted that she was trafficking in both the “Ice” found when she was initially arrested and also the “Ice” found in her room.

3.   The quantity on initial arrest was 0.14 grammes of “Ice” and the quantity found in the room was 2.96 grammes.  The “Ice” in the room was also found together with paraphernalia for trafficking, such as resealable plastic bags and an electronic balance.

4.  The defendant made further admissions under caution about purchasing a total of about 7 grammes for $5,000 and then resealing the bags for subsequent trafficking.

5.  It was found after inquiries with the Immigration Department that the defendant is subject to a deportation order imposed upon her under the name of Mary Ellen Edwards, alias Faye Carter, which was imposed on 29 December 2006.

6.  The Immigration records show that the defendant had breached that deportation order on four occasions:  on 11 January 2008; 2 July 2008; 8 December 2008; and 15 March 2009.  They constitute Counts 3 through to 6.

7.  The defendant had changed her name in the United Kingdom and subsequently obtained a passport under the name of Catherine J Grisham, which she had used to travel to Hong Kong.

8.  Those are the facts that were admitted.

9.  The defendant admitted her criminal record, which shows that she has been convicted on two previous occasions in Hong Kong.  In 2001, for theft and breach of condition of stay, she received a suspended sentence; in 2005, she received a sentence of 26 months for conspiracy to defraud and also breach of the suspended sentence.

10.  There is an antecedents statement.  It shows that the defendant was born in Cheltenham in the United Kingdom, received education to secondary level in the United Kingdom, has worked as a waitress in Hong Kong, and last entered Hong Kong on 15 March of this year and has been unemployed since then. 

11.  She says that she has been addicted to “Ice” since 2008 but has no serious illness. 

12.  There is also a statement from a police officer, who says that the quantity of drugs found in the defendant’s possession could have been sold to street level abusers for a figure of about $2,387.

13.  There was further mitigation advanced by Mr Acton-Bond on behalf of the defendant.  He said that this lady had come to Hong Kong as far back as 1992 and enjoyed staying here.  She had come here in order to get over problems to do with her father’s death and she had a brother here so she came to enjoy her time in Hong Kong and established a long-term residence here but did not in fact establish permanent residence.  In the United Kingdom she had always done what was short term or casual types of jobs and that before her last trip to Hong Kong she was in fact working for Tesco’s.

14.  Her family is now distant.  Her return to Hong Kong in around 2005 had been due to some romantic attachment and at that time she unfortunately became a “front” person for some credit card offences, and we can see the conviction for conspiracy to defraud in 2005. 

15.  He observed that when she was in the United Kingdom she had changed her name legitimately but the passport with the new name was then used to return to Hong Kong in breach of the deportation order.  He says that as far as her breaches of the deportation order were concerned, at least two of them were concerned with her trying to extend the visa that she already had to avoid actually putting herself in a breach of condition of stay and he asked that I treat her breaches of deportation order as similar to a continuing offence rather than as four separate and individual offences as charged.

16.  She did have a return ticket but she had subsequently lost it.

17.  As far as sentencing is concerned, counsel did point out, and it is common ground here, that the trafficking in “Ice” has a clear tariff.  The quantity that the defendant was found in possession of was something around 3 grammes and trafficking in “Ice” up to 10 grammes can lead to sentences of between 3 to 7 years’ imprisonment.

18.  As far as the breaches of the deportation order are concerned, there is authority that says that a starting point of up to 3 years’ imprisonment can be appropriate.

19.  What I have here is offences committed during the course of the time that the defendant was here in breach of the deportation order and offences of trafficking in dangerous drugs that appear to have been committed in order to finance her stay here, so there is a relationship between them.

20.  Also in sentencing the defendant I am asked to take into account her age, she is a lady who was born in 1952; the fact that this is despite her long stay in Hong Kong still a culture which is to a certain extent foreign to her and that will impact on her imprisonment.  Furthermore, that at the time that she was trafficking in the drugs she was also an addict herself, so some of the drugs found in her possession may well have been used for her own consumption.

21.  Having heard all this mitigation, in respect of the first two offences I have decided that the appropriate starting point for sentence is one of 3 years’ imprisonment.  The sentence will of course be reduced by the defendant’s plea of guilty by one-third, so on the 1st and 2nd charges, there will be a sentence on each charge of 2 years’ imprisonment.

22.  As far as the breach of the deportation orders are concerned, there is again a tariff established by the High Court.  I also bear in mind that these are somewhat persistent offences committed throughout 2008 and into 2009. 

23.  Again, on each of those offences of breach of a deportation order, I will adopt a starting point of 3 years’ imprisonment and reduce that to 2 years’ imprisonment for the plea of guilty, so the sentence on Charges 3, 4, 5 and 6 will be one of 2 years’ imprisonment on each charge.

24.  I have to decide how these sentences should be served, to what extent they should run concurrently or consecutively.

25.  It appears to me that the first two offences effectively originate out of the same what I call stash of drugs and I will order that the 1st and 2nd offences run concurrently to one another.

26.  As far as the 3rd, 4th, 5th and 6th offences are concerned, although they are committed chronologically at separate times, they do all involve the defendant’s act of breaching her deportation order and her persistence in her determination to stay in Hong Kong.  I have decided that as far as those offences are concerned, they should also be served concurrently to each other, so sentences 3, 4, 5 and 6 of 2 years’ imprisonment should be served concurrently to each other.

27.  The offences of the breach of the deportation order clearly do operate separately to the offences of trafficking in dangerous drugs so they can run consecutively. 

28.  However, I have to consider the overall totality of sentence in this case and so I consider that at least an element of the offences of 3 through to 6 should be served concurrently with 1 to 2 and another element should be served consecutively.

29.  What I shall do is achieve an overall sentence for this overall criminality of 3½ years’ imprisonment.  I shall do that by ordering the sentences on Charges 3 to 6, 18 months of those run consecutively to Charges 1 and 2 and 6 months concurrently.  This will give an overall sentence of 3 years and 6 months’ imprisonment for this defendant.  That will be my sentence.