HKSAR v. Datu Michelle Patio and Another

HCCC 308/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 308 OF 2016

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

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COURT:

The 1st defendant, Madam Datu Michelle Patio, you have pleaded guilty to one charge of trafficking in a dangerous drug, and the 2nd defendant, Javed Saleem, you have pleaded guilty to two charges, a joint charge of trafficking in a dangerous drug with the 1st defendant and possession of a dangerous drug in Count 2.

Dealing with the 1st charge, trafficking in a dangerous drug, both you D1 and D2, have admitted, on 19 November 2015, at the junction of Shan Tung Street and Shanghai Street, Mong Kok, Kowloon, you unlawfully trafficked in 27 grammes of a crystalline solid containing 26.3 grammes of methamphetamine chloride.

For the 2nd defendant, on Charge 2, you have admitted that on the same date but at Room B, 2nd Floor, No 997 Canton Road, Yau Ma Tei, you had in your possession 7.69 grammes of a crystalline solid containing 7.46 grammes of methamphetamine hydrochloride. This drug is commonly known as ‘Ice’.

On 19 November 2015, at about 1.25 am, both of you were intercepted whilst walking along Shan Tung Street, in Mong Kok, by police officers. At that time when you were walking, you were each holding a milk carton box. Upon interception, you both discarded the boxes. A search of the milk boxes discarded revealed that the 2nd defendant’s box was empty while the 1st defendant’s box contained one plastic bag containing the drugs as stated in Charge 1. You were both arrested and cautioned for trafficking in drugs and you remained silent.

You were escorted back to your home where you lived together, the address as stated in Charge 2. D2 had the key in his possession and after a search of the flat, on the desk in the only bedroom was the drugs contained in Charge 2 and also three plastic bottles containing some liquid containing traces of methamphetamine, a fire lighter, an electronic scale and straw. Again, you were both arrested but remained silent.

The retail value of the methamphetamine hydrochloride seized in this case was about $10,962.

Through your pleas of guilty, you accept and admit that you were in possession of the drugs in the milk box for the purpose of unlawful trafficking, and the 2nd defendant, you admit that you had the drugs for your possession that were found in the flat.

For D1, you are a Filipina and you hold a Form 8 recognisance. I am told you entered Hong Kong legally on your passport, and then overstayed and made a non-refoulement claim in 2011. You have been in Hong Kong for six years. I should say you came as a tourist in 2011.

You are 33 years of age, have high school education, have two children in the Philippines aged 16 and 6. You are of clear record. I have received a letter written by you, stating your deep remorse for committing this offence but explaining the reasons for your committing of this offence was because of your dependency on drugs.

Ms Judy Ma, your counsel, informed me that you had originally come to Hong Kong as the father of your child, a British expatriate, was living Hong Kong. He had supported you and your son whilst you were here. However, while living here, you came to know some bad friends and started to take drugs. When your British boyfriend found out, this led to your separation from him in 2013. But in view of your dependency, you remained in Hong Kong and, whilst here, formed relationships with a New Zealander and thereafter with the 2nd defendant.

It is your case that you lived with the 2nd defendant as he provided you with accommodation, food and drugs in return for you providing him with sex and cleaning of the premises. You have said that he was dominating you and you were reliant on him as you were addicted to drugs.

Your urine test when you were remanded shows it was positive for ‘Ice’. It is your case that the 2nd defendant had asked you to take these drugs to some place and you did so. It has been pleaded on your behalf for you to be permitted to return to the Philippines as soon as possible so that you may look after your family, your parents and children. But for the fact of your addiction, you would have left Hong Kong.

As for you, the 2nd defendant, you are of Pakistani origin but you are a Hong Kong ID card holder. You were born in Pakistan and came to Hong Kong as a dependant as your father was working here in 1988. You are married and support a wife and two children in Pakistan. You mainly worked on a construction site and remitted money back to your family in Pakistan. Whilst working, you acquainted with people who started you taking drugs as long ago as in 1999 when you started with heroin and eventually switched to ‘Ice’ in 2009.

Ms Monica Chow says this is clearly reflected in your criminal record to which you have eight previous convictions, six of which are possession of dangerous drug convictions. One is of possession of a pipe and equipment fit and intended for smoking. Therefore, you have had a long history and dependency to drugs.

The reason for you committing this trafficking offence, however, was because you had been out of a job for approximately a year and as you had little or no money, you agreed to commit this offence for the lady who was stopped with you for $1,000. This money would have assisted your family in Pakistan as well as provided for your drug dependency.

Ms Chow, on your behalf, denies you were accommodating the 1st defendant in return for sex or cleaning your premises. She says it is your case that you had a relationship with her.

As regards your relationship with each other, the 1st and 2nd defendant, it matters not whether you have an intimate relationship or one that was in return for a favour, in respect of this charge.

What I do accept perhaps is that the 2nd defendant, being the breadwinner or earner, was able to provide drugs to the 1st defendant and through Ms Chow’s mitigation, it was he who was asked to transport these drugs by the Chinese lady as mentioned in the Summary of Facts, Ms Lam, and it was he who was to be provided with the reward. The 1st defendant was therefore only asked to carry this by the 2nd defendant.

They are equally culpable in this offence. I am not going to have one more culpable than the other on the facts as presented to me for Charge 1. In respect of the drugs found at the flat, the 2nd defendant has admitted that all these drugs were for his consumption. Clearly, there is quite a large amount of ‘Ice’ there and there is the risk that these may be used for trafficking.

Turning to sentencing. There are guidelines for trafficking in ‘Ice’ laid down by the Court of Appeal. The relevant guideline case is that of Tam Yi Chun. For amounts of between 10 and 70 grammes, the starting point after trial is one of 7 to 11 years’ imprisonment. You were both trafficking in 26.3 grammes of ‘Ice’. Had you been convicted after trial, I would have taken a starting point of 8 years’ imprisonment.

For the 1st defendant, you are a Form 8 holder and torture claimant in Hong Kong. The Court of Appeal in Sandagdorj & Another and Shah Syed Arif and Norena Gutierrez have stated that sentences for torture claimants in these serious offences should be enhanced. The reason is that the claimant is in Hong Kong, abusing Hong Kong’s hospitality whilst the claimant is permitted to be at liberty in Hong Kong.

Therefore, for the 1st defendant, I enhance the starting point by 3 months’ imprisonment. Therefore, for the 1st defendant, the starting point is 8 years and 3 months’ imprisonment.

Both defendants, your strongest mitigating factor is your plea of guilty and for that a one-third discount is warranted.

For D1, you shall be sentenced to 5 years and 6 months’ imprisonment, and for D2, 5 years and 4 months’ imprisonment.

For D2, you were in possession of 7.46 grammes of ‘Ice’. Had you been convicted after trial, I would have taken a starting point of 15 months’ imprisonment. I would enhance that sentence in view of the latent risk by 12 months, making a starting point of 27 months’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 18 months’ imprisonment.

Now, cross checking, 18 months’ imprisonment would hardly be a gramme or two of ‘Ice’ if it were for trafficking. In the circumstances, I order that 18 months’ imprisonment be served wholly concurrently to Charge 1. Therefore, your total term of imprisonment is 5 years and 4 months’ imprisonment.