HKSAR v. Bolante Ivy Joy Villanueva

CACC 204/2020

[2021] HKCA 1424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 204 OF 2020

(ON APPEAL FROM DCCC NO 742 OF 2019)

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Before: Hon Zervos JA in Court

Date of Hearing:  24 September 2021

Date of Judgment:  24 September 2021

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J U D G M E N T

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1.The applicant was convicted after trial before District Court Judge G Lam (the judge) of the offences of trafficking in a dangerous drug, namely 11.86 grammes of a crystalline solid containing 11.69 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1) and breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115 (Charge 2). She was sentenced to 6 years and 6 months’ imprisonment on Charge 1 and 2 months’ imprisonment on Charge 2, which were ordered to be served concurrently.

2.The applicant applies for leave to appeal her conviction and sentence on Charge 1 only.  Having been refused legal assistance from the Legal Aid Department and the Hong Kong Bar Free Legal Service Scheme, the applicant appears in person in support of her application.

3.The applicant came to Hong Kong in April 2014 to work as a domestic helper.  However, in September 2015 she stopped working as a domestic helper and thereafter remained in Hong Kong illegally.  On 14 March 2019, police officers found 11.69 grammes of Ice inside the room she rented.  The drugs were contained in four resealable transparent plastic bags inside a yellow bag that was hidden in a gap between the wall and a wardrobe next to her bed.

4.At the applicant’s trial, the prosecution adduced in evidence that the estimated street value of the drugs was $6,523 and that the daily dosage of Ice consumption ranged from 0.1 to 0.5 gramme. 

5.The applicant elected not to give evidence and did not call any witnesses.  In a video recorded interview under caution the applicant admitted that the drugs belonged to her.  She claimed that she used $2,000 to buy the drugs in February 2019, which she separated into the four bags that had been recovered by the police.  She claimed that she did not consume Ice often and would only do so when she was not feeling well.  She did not know how much she would consume for each dosage. 

6.As for her financial position, the applicant claimed that she worked occasionally as a cleaner and that she rented the room since November 2018 at a daily rate of $200. 

7.At trial, the applicant essentially admitted the prosecution case, including that she was in possession of the drugs at the material time.  The only issue for the judge was whether the drugs were for trafficking or for the applicant’s own consumption.

8.The trial judge in his reasons for verdict rejected the applicant’s defence.  He examined her financial means to be able to facilitate a drug addiction, taking into account the cost of the drugs and her ability to save money to send to her daughter and to buy various personal items.  He also noted the circumstances in which the drugs were found in four separate bags and the quantity involved, which had all the hallmarks that the drugs were for trafficking rather than for her own consumption.  He also contrasted these circumstances with her account in her interview that she only consumed Ice occasionally and that she could not tell the amount for each dosage she consumed.  Finally, the judge took into account the expert evidence on the daily dosage of Ice by a drug abuser, and that the amount seized was enough for 23 to 116 days of consumption, and again he contrasted this evidence to the applicant’s statement in her interview that she would only consume Ice occasionally.

9.The judge concluded that the applicant possessed the drugs for the purpose of trafficking.  The judge noted that the applicant had tested positive for Ice when she was taken into custody but was of the view that being a drug user and a drug trafficker were not mutually exclusive. 

10.In sentencing the applicant, the judge adopted a starting point of 7 years’ imprisonment applying the sentencing guidelines in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  It is noted that if the judge had taken a strict arithmetical approach the starting point could have been 7 years and 1 month’s imprisonment.  He reduced the starting point by 6 months on the basis that a small portion of drugs were for the applicant’s own consumption.  Having noted that there was no other meaningful mitigation, he sentenced the applicant to 6 years and 6 months’ imprisonment. 

11.The applicant does not advance any grounds of appeal against conviction and sentence except to reiterate that the drugs were for her own consumption and request a reduction in sentence.  The judge very carefully analysed the evidence, taking into account the applicant’s account in her video recorded interview.  He explained why he rejected her defence and convicted her of the charge of drug trafficking.

12.In the circumstances, the applicant has no basis for complaint against the sentence imposed on her.  The judge adopted an appropriate starting point and gave an appropriate reduction to allow for the fact that some of the drugs were for her own consumption.

13.There is no merit in the application for leave to appeal against conviction and sentence.  Accordingly, I do not find any reasonably arguable grounds of appeal and the application for leave is refused.

14.The applicant is duly reminded of her right to renew her application for leave to the Court of Appeal, but she is also informed that if she does so, the Court has the power to make an order for loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the view that there was no justification for the renewal of the application. 

Mr Derek Wong, SPP, of the Department of Justice, for the respondent

The applicant appears in person