HKSAR v. Berces Sharon Valdez

HCCC 32/2019

[2019] HKCFI 2385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 32 OF 2019

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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 one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. You have admitted unlawfully trafficking in 23.63 grammes of a crystalline solid containing 12.6 grammes of methamphetamine hydrochloride which is ‘Ice’ and 0.39 grammes of herbal cannabis. This plea was entered before the Eastern Magistracy on 28 January 2019, and you were committed to the Court of First Instance for sentence on that same day.

The facts of this case are that the defendant was arrested on 7 February 2018 when the police intercepted her coming out of Flat B, 2nd Floor, 408 Shanghai Street, Kowloon. The police had actually been watching the premises for just over an hour. The defendant was searched and the police found in her jacket pocket one plastic bag containing 10.2 grammes of a crystalline solid containing 0.05 grammes of methamphetamine and one plastic bag containing five plastic bags of different sizes containing 13.43 grammes of crystalline solid containing 12.55 grammes of ‘Ice’ and 0.39 grammes of herbal cannabis. The defendant was not immediately cautioned after she was arrested.

The premises, Flat B, was a subdivided unit and the defendant had keys for Room 3. The police had a search warrant. The police found one paper box containing an electronic scale and two packets of a pile of transparent resealable plastic bags on a table above the bed. These items are normally associated with packing dangerous drugs.

A video-recorded interview was conducted later in the presence of an interpreter. Under caution, the defendant told the police that the ‘Ice’ seized from her was for her own consumption but she was not a habitual drug user. She said she lived alone in the room in Flat B. She was shown the electronic scale and empty transparent resealable plastic bags but she refused to answer any questions about those items. She also refused to answer where she got the drugs from and where she would consume it.

It was admitted that the estimated market retail value of the drugs was $12,253.

The facts are the defendant admits that the dangerous drugs seized were for the purposes of unlawful trafficking.

In mitigation, I heard that the defendant is now 39 years old and a national of the Philippines. She is a university graduate. She did come to work in Hong Kong as a foreign domestic helper. She has family at home in the Philippines: her husband and two teenage children. She is currently separated from her husband. She has one previous conviction. It is not drug-related. In May 2016, she was sentenced to 4 weeks’ imprisonment for a breach of her condition of stay in Hong Kong. When she was arrested, she was a recognisance form holder, meaning she has applied for a non-refoulement protection and her claim is pending.

Her best mitigation is her plea of guilty. I will take into account she has no previous drugs convictions in Hong Kong.

I have also considered the mitigation letters from family members. There is in mitigation a submission that some of the drugs were for her own consumption. I have heard today that her mitigation is she purchased those drugs to share with her flatmate. Those drugs were meant to be just for their own consumption. There is a urine test that was taken or conducted after she was remanded in custody which tested positive for ‘Ice’. However, the Summary of Facts that the defendant agreed says she was arrested when she was leaving her home with all the drugs in her pockets. Without oral evidence, I am not satisfied that any or part of the drugs that were in her pocket was for her own consumption. The facts she agreed are at odds with mitigation put forward.

The sentencing guideline in ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 10 to 70 grammes is 7 to 11 years’ imprisonment. Therefore, mathematically speaking, the starting point for trafficking in 12.6 grammes of ‘Ice’ is 7 years and 2 months.

There is an aggravating factor here and that is the defendant is a non-refoulement protection claimant now convicted of trafficking drugs. The Court of Appeal has endorsed an enhancement of sentence for this serious breach of trust and privilege by a person not normally entitled to be in Hong Kong, someone like the defendant who remains here on the strength of a Form 8. This crime not only affects the community at large but has an obvious impact on Hong Kong’s reputation. What that means is it was not committed by a Hong Kong resident but by a person not normally entitled to be here and is only permitted to remain at liberty within the Hong Kong community whilst her torture claim is being processed.

I have referred myself to the authority of HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 and HKSAR v Ali Saif, CACC 309/2017 which endorses that enhancement. In that last authority, the Court of Appeal said they would not expect an enhancement for this factor to be less than 6 months’ imprisonment for the serious offence of trafficking in dangerous drugs in a case before either the District Court or the High Court.

Having considered the facts of this case, the type of drugs and the quantities involved, I find an enhancement of 6 months to be appropriate for this aggravating factor. I would add here that I am not taking the herbal cannabis into account in sentencing as the amount is negligible.

Defendant, please stand up. After having considered full mitigation, your background, the facts of the case, the quantity of ‘Ice’ and the early plea of guilty, I will take a starting point of 7 years and enhance it by 6 months for the aggravating factor I have just mentioned. Since you have pleaded guilty at the earliest opportunity, you are entitled to a one-third discount from the starting point of 7 years and 6 months. After that discount is applied, you are sentenced to 5 years’ imprisonment for this offence. Do you understand that sentence?

ACCUSED: Yes, my Lady.