HKSAR v. Ortega Meliza Higuit

HCCC 248/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 248 OF 2015

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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 to a charge of trafficking in a dangerous drug, contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance. You admitted on 5 January 2015, at Flat A, Room 2 on the 2nd floor of Kai Wan Building, 142-146 Tung Choi Street, Mong Kok, you unlawfully trafficked in 9.28 grammes of a mixture containing 7.52 grammes of heroin hydrochloride, 29.10 grammes of a solid containing 22.10 grammes of cocaine and 95.74 grammes of a crystalline solid containing 95.14 of methamphetamine hydrochloride.

On that day in question, police officers carried out an operation in relation to those premises. At about 11.25 am an officer saw you emerge from the lift doors and go into the flat. You used a key to open the door of Room 2. He followed behind, intercepted you and revealed his identity.

Another female was found inside the room, her name was Ling Yuen-yee. Beside her on the table was equipment used to consume dangerous drugs, a bottle for inhaling “Ice” together with other drug-taking paraphernalia such as tinfoil, a paper straw, a lighter and an electronic scale.

You were then brought into the room. Ling Yuen-yee claimed she was at those premises to smoke drugs and said the drugs belonging to you were in a black bag. This black bag was unzipped and some of the drugs as stated in the charge were found inside. In another three bags, the other drugs in the charge were found. There were numerous individual packets of drugs. You were arrested for the offence of trafficking, but you were not cautioned as you did not speak Cantonese.

In a video-recorded interview later that day, you admitted that you would deliver drugs and that the drugs were delivered to Ling by a person known to you as Ah So. Ah So was your boss.

The street value of the drugs was $6,969 for the heroin, $28,431 for the cocaine and $40,690 for the methamphetamine hydrochloride otherwise known as “Ice”.

After some investigation it was revealed that you had entered Hong Kong as a domestic helper but had overstayed. You further admitted that $750 was from proceeds from the sale of dangerous drugs.

At the time of the commission of this offence you were of clear record.

As a result of your overstaying you were sentenced to one day imprisonment in October 2015 for your breach of condition of stay.

Defendant, you are 34 years of age. You were was educated up to first year in university in the Philippines and you claim to have been a drug addict for the past 2 years.

At the time of the commission of this offence you were living at the premises in question. Your counsel, Mr Victor Lee, has mitigated fully and thoroughly on your behalf. I have taken into account all that he has had to say.

He informs me that in 2006 you came to Hong Kong to work as a domestic helper and stopped in 2009. You came back to Hong Kong in 2010, however left your employment prematurely in June or July 2013 as you found it difficult to work for the family due to the workload and pressure.

Not however going back to Philippines, you ran away and stayed with friends and remained in Hong Kong. You were unable to provide financial support to your family. You were lonely and helpless and relied upon your Filipino friends in Hong Kong. You were soon induced to take drugs and became a drug addict, as a result of which you were used by your friends and asked to deliver drugs to customers.

It is your case that despite you delivering drugs to customers, you were not necessarily paid but you were given “Ice” in exchange. Mr Lee has submitted that part of the “Ice” found in the premises were for your own consumption. In support of that, he relies on the fact that your fingerprints were, in fact, found on one of the wrappings of the packets of the dangerous drugs and on the bottle for inhaling “Ice”. Further the drugs were found in the premises where you lived.

You do not have a criminal record for drugs and this is your first offence in Hong Kong. It appears you did not have the ability to pay for drugs and, therefore, your trafficking in drugs was to support your dependency and consuming of drugs.

I am satisfied that at least part of the drugs were for your own consumption. The drugs found in the premises were of three different types. They were of heroin, cocaine and “Ice”. The drugs heroin and cocaine are treated as a similar type of drug in sentencing terms.

The guideline applicable is that as laid down in Lau Tak Ming. In those circumstances, the heroin and the cocaine should be added up together to make a total amount for the cocaine and heroin. Adding those two sums together the total amount would be 29.62 grammes. That would fall within the second bracket of Lau Tak Ming between 10 and 50 grammes, where a starting point of between 5 to 8 years imprisonment after trial is appropriate.

For this amount of heroin, had you been convicted after trial the appropriate starting point would be one of 6 years and 3 months’ imprisonment.

For the remaining type of drug it was “Ice”. You had 95.14 grammes of “Ice” for trafficking. The sentencing guidelines for “Ice” is laid down by HKSAR v Tam Yi Chun, for amounts between 70 and 300 grammes, a starting point of 11 to 15 years’ imprisonment after trial is appropriate. For that amount of “Ice”, had you been convicted after trial an appropriate starting point would be one of 11 years and three months’ imprisonment.

As there are two different types of drugs, I consider a combined approach to be appropriate in order to determine the proper starting point.

“Ice” in this case is the larger and more serious type of drug, and I consider an upward adjustment be calculated to take into account the heroin. The upward adjustment is to be calculated by the conversion method as laid down in Wong King Kau. An amount of 29.62 grammes of heroin of which a starting point of 6 years and 3 months imprisonment would be appropriate after trial, is similar to the sentence of trafficking in 8 grammes of “Ice”.

Therefore, by converting that amount of heroin to “Ice” is 8 grammes and I would therefore add a further 8 grammes to that of 95.48 grammes which makes a total of 103.14 grammes of “Ice”.

In sentencing for that amount of “Ice”, had you been convicted after trial I would have taken a starting point of 11 years and 6 months’ imprisonment.

Defendant, therefore the starting point is one of 11 years and 6 months. As I mentioned, I accept that part of the drugs was for your own consumption and I therefore take a sentencing point discounting that starting point by 10 per cent.

Therefore, the sentencing point will be one of 10 years and 4 months’ imprisonment, and from that sentencing point, you had pleaded guilty, which is the strongest mitigating factor, and you will be accorded the usual one‑third discount and the resulting sentence to which you shall serve is 6 years and 11 months’ imprisonment.