HKSAR v. Bolante Ivy Joy Villanueva

DCCC 742/2019

[2020] HKDC 967

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 742 OF 2019

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant faces a charge of "Trafficking in a dangerous drug" (Charge 1) and a charge of "Breach of condition of stay" (Charge 2).

2.She pleaded guilty to Charge 2 and was convicted of Charge 1 after trial.

3.In the evening on 14 March 2019, a team of police officers conducted an operation at Flat B4, 11^th Floor, Block B, Chung King Mansions, Nos.36-44 Nathan Road, Tsim Sha Tsui ("the Flat"), which consisted of 5 sub-divided units or rooms.

4.A Bangladeshi male surnamed Kibrea, 2 Filipino females (one being the defendant) and a Chinese male were present at the Flat.  The defendant was the tenant of Room 5 in the Flat.

5.PC 18113 searched Room 5 in the presence of Mr. Kibrea and the defendant.  He found a yellow pouch (Exhibit P7) containing 4 transparent resealable plastic bags which contained a total of 11.86 grammes of a crystalline solid containing 11.69 grammes of methamphetamine hydrochloride (Exhibits P8 to P11).  After trial, the defendant was found possessing Exhibits P8 to P11 for the purpose of unlawful trafficking; at least a substantial portion, if not entirely.  This is Charge 1.

6.By virtue of her visa, the defendant was permitted to enter and remain in Hong Kong as a domestic helper until 27 September 2015.  She entered Hong Kong on 22 April 2014 and had not left since then.

7.The defendant was arrested by the Police on 14 March 2019 in connection with Charge 1.  By remaining in Hong Kong since 28 September 2015, she has been in breach of her condition of stay.  This is Charge 2.

Mitigation & Sentence

8.The defendant is 45 and has a clear record.  Defence counsel Ms. Draycott, SC informed me that the defendant's marriage broke down after she became a drug addict.  Her husband threatened to kill her if she ever goes near their children.  This is the reason why she could not go home.

9.In mitigation, Ms. Draycott stated that according to intelligence, South Asian males were trafficking in dangerous drugs on the 11^th Floor, Block B, Chung King Mansions[1]. The Police found one in the present case.  Ms. Draycott commented that the circumstances which led to the arrest of the defendant are unusual and perhaps curious.  She submitted

that the defendant might have been persuaded by someone to keep the drugs for him, which, Ms. Draycott accepts, constituted an act of "trafficking", in return for a share of the drugs for her own consumption. This proposition is, however, inconsistent with what the defendant had said in her video recorded interview.

10.Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it selling, carrying or safekeeping) and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

11.The Court of Appeal has laid down clear sentencing guidelines for trafficking in "ICE" (see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691).  For 10 to 70 grammes, the sentence ranges from 7 to 10 years' imprisonment.  The defendant trafficked in 11.69 grammes.  Applying a strict arithmetical approach, the appropriate starting point is 7 years and 1 month.

12.For Charge 1, I consider a starting point of 7 years' imprisonment to be appropriate and just.  Since the defendant is convicted after trial, no discount for guilty plea can be given.  On the other hand, I accept there is a genuine possibility that a small portion of the "ICE" found was for the defendant's own consumption[2]. I am aware of the sentencing principles governing this aspect[3], I would nevertheless exercise my discretion to grant her a nominal discount of 6 months to reflect the element of self-consumption.  Hence, I sentence the defendant to 6.5 years' imprisonment for this charge.

13.Regarding Charge 2, the defendant overstayed in Hong Kong for almost 3.5 years from 28 September 2015 to 14 March 2019.  I adopt a starting point of 3 months' imprisonment[4]. With her timely guilty plea, the sentence is reduced to 2 months.  I sentence the defendant to 2 months' imprisonment for this charge.

14.Having considered the totality principle, I order the sentence of both charges to run concurrently.