HKSAR v. De Pedro Florence C

HCCC 9/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 9 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty before the Magistrates’ Court to a charge of trafficking in a dangerous drug and you were committed to the Court of First Instance for sentence.

You pleaded guilty to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You admitted that on 1 April 2015, on the 5th Floor of 216 Sai Yeung Choi Street South, Mong Kok, you unlawfully trafficked in 698.05 grammes of a solid containing 408.11 grammes of cocaine, 14.36 grammes of a mixture containing 9.65 grammes of heroin hydrochloride and 498 grammes of a solid containing 207 grammes of ketamine.

On 1 April at 10.15 pm, police officers who are laying ambush outside the flat on the 5th floor saw you walking out of the flat. They intercepted you. They found two keys from your handbag. They used these keys to gain access to the flat and to one of the rooms known as “Room D” inside the flat. They then executed a search warrant to which they were in possession of at that time.

The drugs, as mentioned in the charge, were found in the flat. They were contained in 40 plastic bags and in a beaker. There were also some drugs found on an electronic scale, a metal sleeve and a chopstick. There was also packaging paraphernalia for the dangerous drugs found in the flat. Also found was a booklet containing suspected dangerous drug transaction records.

In video-recorded interviews, you told the officers that you are living in Hong Kong on recognizance. You were acquainted with a female nicknamed “Ah So” for over a year. You had started living in that flat, that is Room D, since 1 December 2014. Ah So provided all the furniture and paid the electricity and gas bills. You did not need to pay any rent. Both you and Ah So had the key of Room D. The dangerous drugs and related apparatus in Room D belonged to Ah So. You had witnessed Ah So processing the dangerous drugs by using the apparatus in the room.

You followed Ah So’s instructions and put specified quantities of dangerous drugs into resealable plastic bags. You would then deliver the bags of dangerous drugs to others. Ah So would pay you $500 every day for your service. You said that the booklet seized at the scene was used to record the dealings between you and Ah So but you refused to explain the records.

In another video-recorded interview, you said that you would communicate with Ah So using your mobile phone whose name for Ah So was “Cynthia Chan” in Messenger.

Defendant, you are now aged 39. You have two previous convictions for breach of condition of stay. You were fined in 2003 and sentenced to imprisonment for 3 weeks in 2006. You are a Philippine national and have six children. Your eldest child, whose father is, I am told, a Hong Kong resident, is aged 20. Your other five children are aged 13, 12, 10, 9 and 7 who are all living at Po Leung Kuk.

Your counsel, Ms Munira Moosdeen, has made full and thorough mitigation on your behalf. She has told me that you came to Hong Kong in 1994. At that time you married a Hong Kong permanent resident. That is the man whom you had your first child with. You then separated in 1999. I am informed that between 1999 and 2002 you held a dependent visa and were able to work, and at that time you worked as a sales lady at the Worldwide Centre. However, some time thereafter your status in Hong Kong was changed and you were on recognizance, as a result of that you were not permitted, or rather you were prohibited, to work in Hong Kong.

Despite my inquiries from your counsel and the prosecution Mr Bobby Cheung they are unable to tell me why there has been a change of your status in Hong Kong. Nevertheless, it appears that since being in Hong Kong you gave birth to five other children to a Pakistani man, who is also, I understand, a Hong Kong permanent resident. He, I am informed, is now serving a 2½ years sentence for a charge of trafficking in dangerous drugs.

Ms Moosdeen has informed me that when he was imprisoned you faced great financial constraints as you were not permitted to work, and as a result of this you assisted Ah So to traffic in these drugs. You met Ah So through your partner the father of your five other children. Your parnter has written a very detailed letter in mitigation and has accepted that as a result of his drug addiction and his affiliation to drug trafficking this has led to your commission of these offences. As he rightly points out, your five children have now lost the care and love of their parents as both of you are now serving terms of imprisonment.

I see from your letter you are deeply remorseful for your wrongdoing and you have pleaded with me to give you a short sentence as you wish to be released shortly to take care of your children. You have said that since you have spent time in prison you have learnt your lesson. Ms Moosdeen had said that it was really your ignorance that this was such a serious offence and you committed it to really just survive.

As regards your ignorance, I cannot accept that is correct. It does appear to me that you knew the seriousness of this offence as your partner was sentenced to imprisonment for a very similar charge of trafficking in dangerous drugs. No doubt you would have known had you committed a similar offence you might also be serving a term of imprisonment. Nevertheless, I do accept that you committed this offence in view of your difficult financial constraints and situation you were in. I accept you have shown the court your remorse through your very early plea of guilty.

As regards asking for a short sentence, I do not have a discretion to give a very short sentence. I am bound to follow tariffs or guidelines in sentencing you for trafficking in dangerous drugs which the Court of Appeal have laid down.

In respect of the mitigation placed before me, there are no exceptional circumstances to warrant a departure from those tariffs or guidelines. I am sympathetic to your children, but this is not a reason to depart from the guidelines.

Defendant, you were trafficking in three types of drugs, those being cocaine, heroin and ketamine. In sentencing you, I will adopt the combined approach and will use a single tariff for one drug to be applied to the entire quantity. In so doing, I will use the conversion rate and convert the ketamine to that of heroin.

Dealing firstly with the cocaine, there was 408.11 grammes of cocaine and 9.65 grammes of heroin hydrochloride. The sentence guidelines for heroin and cocaine are the same and those are set down in the case of Lau Tak Ming. I will therefore add these two amounts together. In doing so, I arrive at a total of 417.76 grammes. In following Lau Tak Ming, that falls within the category of 400 to 600 grammes to which a sentence after trial would be one of between 15 to 20 years’ imprisonment. Given the quantity of that amount of drugs, had you been convicted after trial that would have warranted a sentence of 15 years’ imprisonment.

In respect of the ketamine, the tariff guidelines for sentencing are laid down in Secretary for Justice v Hii Siew Cheng. In the amount between 50 and 300 grammes, the sentence is between 6 to 9 years’ imprisonment after trial. In sentencing you for this amount of ketamine, an appropriate starting point after trial would be that of 7 years and 6 months’ imprisonment. In converting that term into heroin, a sentence of 7 years and 6 months’ imprisonment would be a sentence similar to that of 45 grammes of heroin or cocaine. Therefore, in converting ketamine to cocaine or heroin that would amount to about 45 grammes.

I will therefore add 45 grammes to the 417.76 grammes which makes a total of 462.76 grammes of heroin and/or cocaine.

In taking that quantity as the quantity for a single tariff, had you been convicted after trial for that amount of drugs, the starting point would be one of 16 years and 6 months’ imprisonment. You have pleaded guilty and therefore the usual one-third discount should be applied and your sentence shall be reduced to one of 11 years’ imprisonment to which you shall so serve.