HKSAR v. Baylon Veronica Moncayo

HCCC 446/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 446 OF 2015

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

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COURT: The defendant, Miss Baylon Veronica Moncayo, pleads guilty to one count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the defendant, on the 20th day of May 2015 at Room 603, Asia House, Flats A and B, 6th Floor, Asia Mansions, 390-394 King’s Road, North Point, in Hong Kong, had in her possession a dangerous drug, namely 19.91 grammes of a crystalline solid containing 19.23 grammes of methamphetamine hydrochloride.

Admitted Facts

On 20 May 2015, police officers searched Room 603 of Asia House at Flats A and B, 6th Floor, Asia Mansions, 390-394 King’s Road, North Point, where the defendant and her baby daughter were inside. From the defendant’s bra, police officers found a bag containing 0.79 gramme of crystalline solid containing 0.77 gramme of methamphetamine hydrochloride, commonly called ‘Ice’.

Inside a female handbag in the room, police officers found a total of eight bags containing 19.12 grammes of a crystalline solid containing 18.46 grammes of methamphetamine hydrochloride; an electronic scale; a pile of empty resealable plastic bags and the keys to the room. The police officers also found an ‘Ice’ bottle inside the room. The defendant was arrested.

In a cautioned video-recorded interview conducted subsequently, the defendant said that she had come to Hong Kong as a domestic helper but had overstayed in Hong Kong after her employment contract had come to an end. She admitted buying the ‘Ice’ seized for her own consumption. She said that she had stayed in the room in Asia House for the last five days.

According to the records of Asia House, the defendant checked into the room on 14 May 2015 and she was the person who paid the daily rent.

The retail value of the ‘Ice’ seized was estimated to be $7,845 in May 2015.

Criminal Record

The defendant has one previous conviction of breach of condition of stay. She also has a conviction of failing to duly register a birth for which she was sentenced to 7 days’ imprisonment on 8 March 2016.

DATC Report

The court obtained a Drug Addiction Treatment Centre report of the defendant before sentencing. According to the report, the defendant is a drug dependent but is not suitable for admission into centre because it is impracticable to administer the statutory 1 year supervision after detention in the centre for the reason that the defendant is not a Hong Kong citizen.

The report states that the defendant is 45 years and 9 months old and was born the fifth of six siblings of a working-class family in the Philippines. She finished a four-year commerce course in the Philippines after secondary school. She was married and has three children. The husband was an irresponsible man and did not take care of the family. She came to Hong Kong to work as a domestic helper and was separated from her husband. She developed a relationship with a drug abuser in Hong Kong and began taking ‘Ice’ to ease her asthma problem. The boyfriend deserted her when she got pregnant. She gave birth to her youngest daughter in Hong Kong and then cohabited with another drug abuser. Her drug addiction has led her to the present offence.

Mitigation

Counsel for the defendant tells the court that it is a mistake in the DATC report when it says that the defendant had told the CSD officer that the dangerous drug seized from her handbag belonged to her boyfriend. It is a misunderstanding between the defendant and the CSD officer, and the defendant admits that the dangerous drugs belonged to her.

Counsel for the defence says that the defendant is genuinely remorseful and has learned a bitter lesson. She had used the ‘Ice’ to sooth her asthma problem, but is now determined not to touch dangerous drugs again. The defendant is a responsible mother. She is hardworking and is the breadwinner of the family.

Counsel for the defence submits mitigation letters of the defendant, the defendant’s mother and the defendant’s two children to the court. The defendant expresses remorsefulness and determination to reform herself in her letter. The defendant’s mother and her two children all express good opinion of the defendant. The defendant and all of them ask for mercy of the court.

Counsel for the defence emphasises that the defendant has made deep reflection of her mistake. He urges the court to be lenient to the defendant.

Sentence

According to the case of HKSAR v Mok Cho Tik [2001] 1 HKC 261, the normal starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should in the range of 12 to 18 months’ imprisonment.

The authority also points out that the quantity of the dangerous drug involved would be the main governing factor in the determination of the starting point. The quantity of ‘Ice’ in the present case is 19.23 grammes which is by no means a small amount.

Taking into consideration of the electronic scale and empty plastic bags found in the possession of the dangerous drug, the court is of the view that there is a real latent risk that the dangerous drugs would fall into the hands of other people.

Although the defendant had used the ‘Ice’ for her medical problem, this cannot, in the view of the court, constitute valid mitigation because there are plenty other means of cure instead of using dangerous drug.

Having considered the whole circumstances, the court adopts a starting point of 2 years’ imprisonment. Giving credit to the defendant for her plea of guilty, the court sentences her to 16 months’ imprisonment.