HKSAR v. Datu Michelle Patio

CACC 236/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 236 OF 2017

(ON APPEAL FROM HCCC NO 308 OF 2016)

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Before: Hon Macrae JA in Court

Date of Hearing: 29 December 2017

Date of Judgment: 29 December 2017

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J U D G M E N T

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1.Following her plea of guilty on 28 July 2017, the applicant was formally convicted in the High Court by D’Almada Remedios J (“the judge”) of a joint count[1] of trafficking in 27 grammes of a crystalline solid containing 26.3 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, she was sentenced to 5 years and 6 months’ imprisonment.

2.On 2 August 2017, the applicant filed a Notice of application for leave to appeal (Form XI) and now seeks leave to appeal against her sentence.

Facts

3.At about 0126 hours on 19 November 2015, the applicant, D2 and a female were intercepted when they were walking along Shantung Street in Mongkok, Kowloon.  The applicant and D2 were each holding a milk carton, which they immediately discarded upon interception.

4.A search of the milk cartons revealed that D2’s was empty, whilst the applicant’s contained one plastic bag containing 26.3 grammes of ‘Ice’ narcotic wrapped in a piece of tissue paper.  The applicant and D2 were thus arrested and cautioned, whereupon they each remained silent.

5.The applicant and D2 lived together in a flat on the 2^nd floor, 997 Canton Road, Kowloon. They were therefore escorted by the police to the premises for further investigation.  Dangerous drugs and paraphernalia for the consumption of ‘Ice’ were discovered in the premises, for which D2 was alone charged with a further offence of simple possession of dangerous drugs.

6.In a subsequent video recorded interview, the applicant stated, inter alia, that she had been cohabiting with D2 for about 18 months and they had been living in the flat for about two months; the applicant was asked by D2 to carry the milk carton for “work purposes” and was told that it contained milk.  When the milk carton was given to her, she saw that it was unsealed but closed; she shook it but did not think it contained liquid.  The applicant said she dropped the milk box upon police interception because D2 dropped his.  She said that if she did not obey D2 to carry the milk box, she would be beaten.

Mitigation

7.The applicant was 33 years old at the time of her sentence.  She was from the Philippines and the holder of a Form 8 recognizance document issued by the Director of Immigration.  The court was informed that that the applicant had two children, a daughter aged 16 and a son aged 6 years old, whose father was a British male living in Hong Kong.  The applicant came to Hong Kong six years prior to the offence, intending to live with the British male.  She had entered the territory legally on her passport and thereafter overstayed.

8.While the applicant was in Hong Kong, the British male had supported the applicant and her son.  However, when she began taking dangerous drugs, the British male separated from her in 2013.  Because of her drug dependency, the applicant remained in Hong Kong and formed relationships with a New Zealand male and thereafter with D2.

9.The applicant then lived with D2, since he provided her with accommodation, food and drugs in return for her providing D2 with sexual favours and cleaning the premises.

10.Although the applicant had a clear criminal record, it was acknowledged that the offence was committed by a Form 8 recognizance holder.  However, counsel urged that any enhancement should be minimal.

Reasons for sentence

11.The judge noted that it was D2 who asked the applicant to carry the ‘Ice’, however, she considered that both were equally culpable in relation to the joint count.  Having referred to the guideline case of HKSAR v Tam Yi Chun[2], the judge noted that for trafficking in between 10 and 70 grammes of ‘Ice’, the starting point for sentence after trial should be between 7 and 11 years’ imprisonment.  As the applicant was involved in trafficking in 26.3 grammes of ‘Ice’, the judge adopted a starting point of 8 years’ imprisonment.

12.That starting point was then enhanced by 3 months in view of the applicant’s status as a recognizance holder.  According her a full one‑third discount for her guilty plea, the applicant was sentenced to 5 years and 6 months’ imprisonment.

Grounds of appeal against sentence

13.In her Form XI, the applicant did not provide any discernible grounds of appeal but simply stated that she would like to appeal for a lesser sentence.

14.In a subsequent letter addressed to the Court on 25 October 2017, she said that she was also a victim because she was forced by D2 to carry the carton containing dangerous drugs.  She would have been assaulted if she did not obey D2’s instruction and was confused at the material time.

Respondent’s submission

15.It was submitted on behalf of the respondent that the judge had applied the correct guidelines and the enhancement was appropriate.  The sentence could not be said to be either manifestly excessive or wrong in principle.

Consideration

16.The starting point for sentence on an arithmetical basis is unimpeachable; as is the enhancement of 3 months’ imprisonment on account of the applicant’s status as a Form 8 recognizance holder. The discount of one‑third for plea was also in accordance with the practice prevailing at the time of the commission of the offence, notwithstanding that the applicant’s plea was not entered at the first available opportunity.

17.There are no reasonably arguable grounds for appeal against sentence and the application for leave must be refused.  The applicant is advised that she has the right to renew her application for leave to appeal to the Court of Appeal, but she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Ms Chan Sze Yan SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person