HKSAR v. Angelita Gonzales

HCCC 29/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 29 OF 2016

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

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COURT:

The defendant had pleaded guilty to one count of trafficking in a dangerous drug, namely 26.2 grammes of a crystalline solid containing 25.7 grammes of methamphetamine hydrochloride, 10 tablets containing 0.1 grammes of nimetazepam and 142 millilitres of a liquid containing traces of methamphetamine.

On 25 June 2015, police officers conducting a surveillance on Room B, 14th Floor, Oi Kwan Court, in Wan Chai, heard a voice from inside Room B and shortly afterwards, the defendant emerged from the room. She was intercepted and she was, at that time, in possession of a recyclable bag. Upon a search of the bag were found the dangerous drugs inside the bag. Inside a resealable plastic bag was the drug ‘Ice’; there was a foil pack containing 10 tablets; there was a total of 13 empty plastic bags; there was an electronic scale and a wallet with HK$6,253.30 and US$100.

The defendant was therefore arrested for the offence of trafficking in a dangerous drug. Under caution, she claimed that the drugs do not belong to her and she was going to give them to a Chinese male in Causeway Bay.

The room was subsequently searched and some plastic bottles were found inside the freezer in the refrigerator and those plastic bottles were suspected to contain dangerous drug.

The defendant, in a video-recorded interview, subsequently said that the packet of ‘Ice’ found in her possession had been given to her by someone called Ah Fong on the previous day and Ah Fong had also, at the same time, given her the three bottles of liquid found in the freezer of the refrigerator. She thought that the packet was ‘Ice’, but she did not know what was in the three bottles. She said that she was intending to return the packet of ‘Ice’, or ‘the stones’ as she called them, to Ah Fong later that night. She said she was not a drug addict.

The government chemist subsequently examined all the drugs found and, subsequently, the government chemist report concluded that inside the plastic bag, 26.2 grammes of a crystalline solid containing 25.7 grammes of methamphetamine hydrochloride was found. The 10 tablets were actually containing a total of 0.1 grammes of nimetazepam and the three plastic bottles of liquid in the freezer contained traces of methamphetamine.

The total street value of the drugs seized was in the region of HK$10,668.

The defendant is aged 45. She came to Hong Kong in 1999 as a domestic helper. I am informed that the defendant is a drug addict. This was confirmed in the medical report that had been obtained after the defendant’s arrest. I am informed by Mr Surman that she fell into drugs because her boyfriend introduced her to it. The defendant has two children.

It is a fact that, subsequently, the defendant was charged with breach of condition of stay and also this drug trafficking offence. She was brought before the Magistrates Court on 15 February 2016 where she was convicted of the breach of condition of stay charge and was sentenced to 8 months in prison.

Mr Surman, on the last occasion, when he found out about this, had submitted that it may be relevant to sentencing and sought an adjournment to clarify matters with the Correctional Services as to her remand period, whether it was counted towards this case.

The subsequent reply from the Correctional Services Department had very clearly stated that the period from 25 June to 14 February was counted under the breach of condition of stay. So she served from 15 February 2016 to 22 February 2016 inclusively after the sentence on 15 February for her breach of condition of stay, and then the period from 25 June to 14 February would have been already counted towards the charge of the breach of condition of stay and therefore will not be accounted again under this case.

Her remand period starting from 22 February 2016 will be accountable to the present case. I see no unfairness in that, nor do I see any unfairness in the defendant being brought before the Magistrates Court for her breach of condition of stay separate from this present charge, because they are entirely different facts.

I have, of course, have to rely on the sentencing guidelines as laid down by the Court of Appeal in Ching Kwok Hung in 1991, in relation to trafficking in ‘Ice’. The charge in the present offence contains a cocktail of drugs; that is 25.7 grammes of ‘Ice’, and then 0.1 gramme of nimetazepam and some traces of methamphetamine. But having considered the facts in this case, I will sentence the whole of the cocktail as per the ‘Ice’ content. I will take into account that the amount of ‘Ice’ is 25.7 grammes and the other, the nimetazepam and the traces are minimal so I will not add them to the 25.7 grammes of ‘Ice’.

So for 25.7 grammes, the suggested guideline, as in Ching Kwok Hung, for trafficking in between 10 to 70 grammes, the recommended sentence is between 7 to 10 years. So therefore, for the present offence, the starting point would be from 7½ to 8 years.

In this case, I decided to adopt the 7½ years’ starting point and taking into account the plea of the defendant, she is entitled to the one-third off. So the sentence is reduced to 5 years’ imprisonment.