HKSAR v. TAMORITE EMILIA TENDENCIA

DCCC 552/2024

[2024] HKDC 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 552 OF 2024

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

CHARGES

1.  The defendant pleaded guilty to the following 4 charges:-

Charges 1 and 2: Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134;

Charge 3: Possession of a 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; and

Charge 4: Breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115.

FACTS

2.  On 7 September 2023, an anti-narcotics operation was conducted against the bar and restaurant area in Wan Chai.  At around 2005 hours, when PC25403 (“PW1”)  posed as a customer was patrolling at Haven Street, an unknown man approached him and asked if he wanted to purchase some weed at HK$300.  PW1agreed and was instructed to go to the location as particularised in Charge 1.  He then saw the defendant appear and pass to PW1 a small package containing a dangerous drug later confirmed to be 2.60 grammes of cannabis in herbal form.  This is the subject matter for Charge 1.

3.  Another operation was mounted on 25 September 2023.  At 1913 hours, PW1 saw the defendant entering a building in Electric Road, North Point.  The defendant was intercepted and upon questioning she was found to be living in a flat on 1^st Floor of that building.  She opened the door of the flat with her key.  Upon search by the police at the premises, a variety of dangerous drugs as particularised in Charge 2 and set out as follows were found being stored in different parts of a cabinet in the living room of the flat:-

(i)  6658.2 grammes of a solid containing traces of tetrahydrocannabinol (“THC”);

(ii)  7.91 grammes of a solid containing 0.07 grammes of THC;

(iii)  19.46 grammes of a liquid containing 13.72 grammes of THC;

(iv)  67.9 grammes of a solid containing 0.42 grammes of psilocin;

(v)  163.72 grammes of cannabis in herbal form;

(vi)  9.93 grammes of a solid containing 7.50 grammes of 3,4-methylenedioxymethamphetamine, or commonly known as ecstasy;

(vii)  85 tablets containing a total of 14.1 grammes of ecstasy;

(viii)  3.79 grammes of a crystalline solid containing 3.78 grammes of ICE;

(ix)  1.27 grammes of a solid containing 0.87 grammes of cocaine; and

(x)  10 pieces of paper containing traces of lysergide.

4.  Police also found 9 devices containing a total of 250.4 grammes of a liquid containing nicotine, which is a listed Part 1 poison and subject matter for Charge 3, 2 digital scales and a large quantities of resealable plastic bags in the flat.

5.  Upon arrest and under caution at the scene, the defendant admitted selling the dangerous drugs for earning money.

6.  The defendant was discovered to be an overstayer as her last domestic helper employment contract had expired on 9 July 2020 and she remained in Hong Kong without applying for any further extension of stay. 

MITIGATION

7.  The defendant is now 45 years old and has a clear criminal record.  She came to Hong Kong in 2006 to work as a domestic helper.  She has 3 adult children who are residing in the Philippines.  Mr Whitehouse, counsel representing the defendant, suggested that the “combined approach” should be adopted in dealing with the sentence in respect of Charge 2.  He also proposed that concurrent sentence to be imposed in relation to Charges 1 to 3 while the sentence on Charge 4 is to run consecutively.

REASONS FOR SENTENCE

Charge 1

8.  In HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, the Court of Appeal held that the sentence for trafficking under 2,000 grammes of herbal cannabis is up to 16 months.  In view of the very small quantity of herbal cannabis involved and taking into account of the defendant’s role as a courier in this incident, I adopt a starting point of 6 weeks’ imprisonment.  The only mitigating factor is the defendant’s guilty plea and the sentence is discounted by one-third to 4 weeks’ imprisonment.

Charge 2

9.  This charge involves a variety of dangerous drugs in different forms and the narcotic contents include:

(i)  13.79 grammes of THC;

(ii)  163.72 grammes of herbal cannabis;

(iii)  0.87 grammes of cocaine;

(iv)  3.78 grammes of Ice;

(v)  0.42 grammes of psilocin;

(vi)  21.60 grammes of ecstasy; and

(vii)  traces of lysergide.

10.  The sentencing guidelines for trafficking in Ice were set out by the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years imprisonment. The starting point for trafficking in 3.78 grammes of Ice would be around 4 years and 6 months’ imprisonment (54 months).

11.  In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the sentencing guidelines for trafficking in ecstasy were laid down by the Court of Appeal.  The starting point upon conviction where the quantity of narcotic is from 10 to 50 grammes is between 4 and 6 years’ imprisonment.  The starting point for trafficking in 21.6 grammes of ecstasy is 4 years 7 months’ imprisonment (55 months).

12.  The sentencing guidelines for trafficking in heroin as laid down by the Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370 are also applicable in the sentencing of cases in respect of trafficking in cocaine.  The starting point upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.  The starting point for trafficking in 0.87 grammes of cocaine would be 2 years and 3 months’ imprisonment (27 months).

13.  As mentioned above, the sentence for trafficking under 2,000 grammes of herbal cannabis is up to 16 months.  In view of the quantity of THC and herbal cannabis involved in Charge 2, the sentence for trafficking in the drug will become negligible.  The court is prepared not to take into account the quantity of this drug in the sentence for Charge 2. 

14.  As for the 0.42 grammes of psilocin and traces of lysergide found, while there are no sentencing tariffs for these drugs, both prosecution and defence agreed that their potency are similar to that of MDMA or ecstasy.  In the circumstances, the sentencing guidelines as laid down in Hii Siew Cheng are also applicable.  That said, even adding the quantity of psilocin (ie 0.42 grammes)  to that of the ecstasy involved in Charge 2, upon calculation, the starting point of 55 months’ imprisonment as mentioned in paragraph 11 above, is unaffected.

15.  If the “individual approach” is adopted for sentencing (i.e. based on quantity alone), by adding the three starting points aforementioned in paragraphs 10 to 12, the overall starting point would be around 11 years and 4 months’ imprisonment (136 months)  and undoubtedly too excessive.

16.  In HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, the Court of Appeal revisited the “ individual approach” and the “combined approach” used in sentencing a defendant who was found guilty of trafficking in multiple drugs and set out the methodology to be used.  In giving the judgment of the Court, Zervos JA said:-

“24. The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious)  drugs. In carrying out this task, the sentencing court should take a common sense approach in determining which drug is to be the base drug in order to calculate the starting point. There may be cases where the more or most serious drug is of such a small quantity that it would be unrealistic to use it as the base drug. As stated, it will be a matter of common sense.”

17.  As stated in paragraph 15 above, the overall starting point for the drugs concerned is considered to be excessively high.  I consider that the “combined approach” should be adopted in determining the starting point for Charge 2.  In this case, the most potent drug is Ice and it is considered appropriate to take Ice as the base drug for sentencing and make adjustments for the other drugs that were present.

18.  According to the sentencing guidelines for trafficking in 3.78 grammes of Ice, the starting point is 54 months.  In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the Court of Appeal said, at para 60: “Absent an admission, or direct or circumstantial evidence, establishing that he is himself dealing with dangerous drugs to others, the courts have generally treated him as a courier or storekeeper, to which the guidelines apply arithmetically.”  On the facts of the present case, I find the defendant to be a storekeeper and I adopt a starting point of sentence of 54 months.

19.  It is now incumbent on the court to determine by how much this starting point should be enhanced to allow for the quantity of ecstasy and cocaine.

20.  The Court of Appeal in HKSAR v Chan Yuk Leong CACC  318/2013 applied the 3 tests to cross-check the starting point in a charge involving multiple drugs.

The absurdity test

21.  Applying the absurdity test, if all the drugs (26.25 grammes in total)  were Ice, the starting point based on quantity alone would be almost 8 years 1 months’ imprisonment (97 months).

The conversion test

22.  If the ecstasy and heroin seized in this case were converted to Ice, the converted quantity is 3.95 grammes of Ice.  Adding the converted quantity (3.95 grammes)  to the 3.78 grammes of Ice seized, it results in 7.73 grammes of Ice.  The conversion test based on the Ice sentencing guidelines is 6 years and 1 months (73 months).

23.  If the Ice and ecstasy seized were converted to cocaine, the converted quantities are 8.37 grammes and 8.6 grammes respectively (i.e. 16.97 grammes in total).  Adding the converted quantities to the 0.87 grammes of cocaine seized, it results in 17.84 grammes of cocaine.  The conversion test based on the cocaine sentencing guidelines is 5 years and 7 months (67 months).

24.  If the Ice and cocaine seized were converted to ecstasy, the converted quantities are  20.24 grammes and 2.17 grammes respectively.  Adding the converted quantities to the 21.6 grammes of ecstasy seized, it results in a total of 44.01 grammes of ecstasy.  The conversion test based on the ecstasy sentencing guidelines is 5 years and 8 months (68 months).

The ratio test

25.  The total quantity of cocaine, Ice and ecstasy is 26.25 grammes.

26.  The calculation on applying the “ratio test”, on the basis that cocaine accounted for 3.31% in weight of the total quantity seized (0.87/26.25), 14.4% for Ice and 82.29% for ecstasy, is set out below:-

Drug	Sentence (assuming 26.25 grammes of single drug)	Ratio	Calculated Sentence
Cocaine (0.87 grammes)	74.6 months	3.31%	Around 2.47 months
Ice (3.78 grammes)	97 months	14.40%	Around 14 months
Ecstasy (21.6 grammes)	57.8 months	82.29%	Around 47.57 months
TOTAL			5 years 4 months (= 64 months)

Starting point

27.  Taking all the aforesaid matters into account to calculate a reasonable and realistic increase to the 54 months’ starting point, I consider it appropriate to increase by 12 months to 66 months’ imprisonment.

Aggravating factor

28.  It has been said that one aggravating feature is the ability of the trafficker to cater to a wider market (see HKSAR v Chan Yuk Leong at para 24).  Given that the defendant had trafficked in a wide variety of dangerous drugs, I enhance the starting point by 3 months to 69 months’ imprisonment.

Mitigating factor

29.  The defendant has entered a timely plea and is therefore entitled to a one-third discount of sentence from the starting point.  It has long been held that the element of good character or lack of previous conviction has been included in the one-third discount for guilty plea (see Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139).  There is, therefore, no other valid mitigating factor which justifies a further reduction of sentence.  The sentence of Charge 2 is reduced to 46 months’ imprisonment.

Charge 3

30.  The summary offence of possession of a poison included in Part 1 of the Poisons List carries a maximum sentence of level 6 fine and 2 years’ imprisonment.  In this case, 9 devices containing a total of 250.4 grammes of a liquid containing nicotine were found in the defendant’s flat.  The nature of the offence is relatively trivial and I adopt a starting point of 3 weeks’ imprisonment.  The defendant is also entitled to a full one-third discount of sentence.  The sentence of Charge 3 is reduced to 2 weeks’ imprisonment.

Charge 4

31.  The maximum penalty for the offence of breach of condition of stay is a fine at level 5 and 2 years’ imprisonment.  There is no tariff for overstaying and the Court of Appeal in HKSAR v Tiongson Patricia Manalad [2002] 1 HKLRD 681 held that the court would look at the length of overstay and taking up employment was an aggravating factor.

32.  The defendant was no longer allowed to stay in Hong Kong after her work visa expired on 9 July 2020.  She overstayed for more than 3 years before she was arrested on 25 September 2023.  It is considered that the appropriate starting point is 3 months’ imprisonment.  Again, she is also entitled to a full one-third discount of sentence for her guilty plea and the sentence for Charge 4 is reduced to 2 months’ imprisonment.

TOTALITY

33.  All these offences are separate and distinct.  The sentences imposed on each charge should be served consecutively.  However, I have to consider the totality principle.

34.  As such, I order that the sentence of Charges 1, 2 and 3 be served concurrently with each other, making a total of 46 months’ imprisonment.

35.  The immigration offence of breach of condition of stay is of a completely different nature. The sentence of Charge 4 is to serve wholly consecutive to the sentence of Charges 1, 2 and 3.

36.  The defendant is sentenced to a total term of 48 months’ imprisonment.