HKSAR v. Montano Alma Putong and Another

HCCC 127/2021

[2023] HKCFI 1883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 127 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.D1 was found guilty of one count of attempting to traffic in dangerous drugs (count 1)  by a jury unanimously after trial. Particulars are that she on the 11^th day of December 2019, outside Yan Yip Building, Nos.72-74 Yu Chau Street, Sham Shui Po, Kowloon, in Hong Kong attempted to unlawfully traffic in dangerous drugs, namely 2986 grammes of a crystalline solid containing 2971 grammes of methamphetamine hydrochloride and 492 grammes of a solid containing 418 grammes of ketamine.

2.D2 was found guilty of one count of trafficking in dangerous drugs (count 2)  at the same trial, also unanimously.  Particulars are that he on the 11^th day of December 2019, outside No. 74 Yu Chau Street, Sham Shui Po, Kowloon, in Hong Kong unlawfully trafficked in dangerous drugs, namely 2986 grammes of a crystalline solid containing 2971 grammes of methamphetamine hydrochloride and 492 grammes of a solid containing 418 grammes of ketamine.

SUMMARY OF FACTS

3.The narcotic contents particularized in count 1 and 2 refer to the same drugs. 

4.Custom Officers intercepted a parcel containing the said drugs when it was being driven into Hong Kong via Lok Ma Chau control point in a UPS truck by an unknowing driver.

5.A controlled delivery was made to the address of the consignee listed on the parcel’s waybill, being Flat A, 2/F, Yan Yip Building. The name of the consignee is stated as “MONTANA ALMA PUTONG”, being almost identical to the name of D1, with Montano being misspelt with an ‘A’ at the end.

6.At around 3:12pm, phone contact was made with the consignee using the phone number stated on the parcel. Customs Officer disguising as UPS staff said they will arrive at the address in half an hour.

7.At 3:47pm, the officer received a call from the consignee number saying that she was waiting. The officer said they were in a traffic jam and will arrive at around 4pm.

8.The officers arrived in the vicinity of Yan Yip Building and was on their way to the building when they called the consignee again at around 4:05pm. While the phone was still ringing and before someone answered, D1 went up to the officers and showed them her phone with the incoming call.

9.After confirming with D1 that she was there to collect the parcel, one of the officers copied down the waybill number, name and address of the consignee onto a UPS Delivery Record form and asked D1 to sign in receipt for the parcel and to write down the time.

10.The parcel was never handed to D1 and remained in the hand of the Customs Officers.  As soon as D1 had signed on the form and written down “1610” as the time, the officers revealed their identity and declared arrest on D1 for suspecting her to have committed an offence under the Dangerous Drugs Ordinance.  The officers also immediately seized the phone and a red white blue bag that D1 was holding.

11.D1 was then brought into Yan Yip Building. D1 was asked what the parcel was.  D1 said she did not know.  She was asked who owned it and D1 said in English, “I take for my friend. My friend will call me and come to take it soon.” The officer asked, ‘Who is your friend?” D1 said, “My friend called Baby Loves in WhatsApp”.  She said she did not know her friend’s name, but described him as “Black guy, around 40 years old, no hair and wear cap.”

12.Permission was granted by D1 to the officers to access her phone.

13.At around 4:20pm, D1 agreed to cooperate with the customs officers’ investigation, and told them that she would contact Baby Loves using the WhatsApp application on one of her two phones. Under the instruction and supervision of the customs officers, D1 had the following text and voice call conversations with Baby Loves.

14.At 4:32pm, D1 texted ‘I am here waiting for you”, and “Where are you? I go to my work now”.

15.Baby Loves replied immediately with “sorry baby”, and then at 4:33pm “10 minutes” and “photo please”.

16.At 4:34pm, D1 sent a photo of the parcel followed by the message “I wait for u here”.

17.At 4:34pm, Baby Loves replied, “thank baby (and emojis)”.

18.At 4:37pm, Baby Loves asked, “do you have bag or I buy?”. At 4:38pm, Baby Loves made a WhatsApp voice call to D1’s phone but hung up after a short time and D1 did not answer that call.

19.At 4:39pm, D1 make a WhatsApp voice call to Baby Loves, asking him, “Where are you, I go to my work now”.  Baby Loves answered ‘sorry baby’ and then hung up.

20.At 4:43pm, Baby Loves texted “am here baby”, and then made a voice call to D1, saying “I am here baby, you can come”, to which D1 replied, “I come now”.

21.At 4:44pm, D1 texted Baby Loves, “I come now”.

22.After that, D1 carried a red white blue bag (紅白藍膠袋)  with the parcel inside and walked out of Yan Yip Building to the junction of Maple Street and Yu Chau Street where D2 was waiting. It was a short walk, taking about 15 steps.

23.CCTV footage of the street corner captured the two of them meeting on the pavement at the corner of the two streets. D2 tapped on D1’s left upper arm once, D1 put the bag on the ground, turned around and went back to the same direction that she had come from.

24.As soon as D2 picked up the bag, Customs Officers laying in ambush jumped out and grabbed him.  D2 resisted but eventually calmed down and was subdued.

25.At 5:15pm, D1 and D2 were brought on two separate government vehicles to an area in Hoi Fai Road, where an ‘identification confirmation’ was carried out.  D1 claimed during this confirmation that D2 was not Baby Loves and that she did not recognize him.  D2 also claimed that he had never met D1 before. D1 signed to confirm this in the post-record.

26.D1 subsequently change her position about 31 hours after the confirmation had taken place, claiming in her cautioned video recorded interview that D2 was, in fact, the ‘Baby Loves’ who had asked her to help collect the parcel, and who had used her name and address for the parcel without her knowledge or consent.  She did, however, continue to maintain her position that she did not know what was inside the parcel.  D1 in her evidence in court confirmed what she said in the video recorded interview is the truth, that D2 is Baby Loves.

27.D2 in his cautioned video recorded interviews claimed that he bumped into a Nigerian compatriot named Dozie about 10 odd minutes before he picked up the bag. Dozie told him that he was late for a job interview and asked D2 to help pick up a ‘Ghana Must Go’ bag (the name the Nigerian community use to refer to the red white blue bags ubiquitous in Hong Kong )  from his female friend.  Dozie handed over one of his two mobile phones to D2 and instructed D2 to text the female friend if he did not see her when he arrived at the pick up point nearby, showing D2 which contact in the WhatsApp is the female friend. Dozie also told D2 that his brother was on the way to the pick up point as well, and that the brother will contact D2 on the phone.  D2 just had to pass the bag and the phone to him afterwards.

28.D2 said he agreed to help since it was on his way and he did not expect it to take too long. When D2 got to the junction near the pick up point he looked around and did not see the woman. D2 followed Dozie’s instruction and used the phone given to him and sent out the 4:43pm “am here baby” message.

29.Shortly afterwards he saw a woman with a big bag walking towards the junction and so he went up to meet her.  D2 said he asked if she was the one, but the woman did not say anything, just dropped off the bag on the ground and turned around and left. D2 said just before the woman dropped off the bag, the phone Dozie gave him rang and D2 answered it. The caller was Dozie’s brother who said he had arrived in the area.  D2 told him not to hang up and that was at around the same time that D2 saw the woman arrived at the junction.

30.Just when D2 picked up the bag, and while the brother was still on the line, D2 was apprehended by a lot of men who appeared out of nowhere, causing him to be very scared and that was why he had resisted. After he had calmed down, he realized they were Customs Officers and from then on, he had cooperated with them.  D2 in his evidence in court confirmed what he said in his interviews was true, and that he had never met D1 before he picked up the bag from her.

31.The only issue in relation to each of the two counts is that of knowledge.

32.By the jury’s verdict, they found that D1 knew that there was some kind of dangerous drug inside the parcel when she signed for it and that her act of signing for it with that knowledge amounted to more than mere preparation to commit the offence of trafficking in a dangerous drug, thus D1 had committed the offence of attempted to trafficking in the dangerous drugs in the parcel.

33.Likewise, by their verdict, the jury found that D2 knew that there was some kind of dangerous drug in the red white blue bag when he picked it up after D1 had dropped it off.

PREVIOUS CONVICTIONS

34.D1 is of previously clear record.

35.D2 has 4 previous convictions, with 3 of them dated the same day on 5^th May 2011 and which arose from his overstaying, using an identity card relating to another person; remaining in HK without the authority of the Director of Immigration after landing unlawfully in HK; and attempting to mislead a Police officer by giving false information. D2 was sentenced to a total of 15 months’ imprisonment.  His last conviction was on 7^th July 2022 when he was sentenced to 4 months’ imprisonment for wounding an inmate while in remand for this case at Lai Chi Kok Detention Centre.

MITIGATIONS

D1

36.D1 is holder of Pilipino passport, she is 38 years old. She was married in 2003 and her husband fixes power lines in the Philippines.  They have a 19 year old son and a 14 year old daughter who are both students there.  The defendant’s father passed away some time ago, and her mother helps looking after the children while D1 earns a living in HK.

37.D1 arrived in HK under a domestic helper contract on 9^th September 2017, expiring on 9^th September 2019.

38.Reverend Tung of The Hong Kong Christian Kun Sun Association Limited wrote in mitigation on behalf of D1.  She had been visiting D1 since August 2022 and finds her to be a humble person and willing to help others.  She works hard and is a devout Roman Catholic.

39.D1 also wrote in mitigation, stating that she had trusted the wrong person, resulting in her current predicament.

40.Mr Percy in his mitigation urges the court to treat D1 as leniently as possible and to adopt the lowest tariff starting point.  He also submits that D1 should be given a reduction in sentence for her agreement to take part in the second controlled delivery which led to the arrest and eventual prosecution and conviction of D2.

D2

41.D2 was born in Nigeria and is 50 years old.  He was educated in Nigeria up to Primary 5. He came to HK in 2006, overstayed, and then in around 2011 or 2012 applied for asylum here.  His application is still being dealt with by the courts.  As a form 8 holder, D2 is not allowed to work in HK.

42.D2 got married to a HK Chinese resident in 2012, who works as a designer.  D2 is supported by his wife and her parents and relations. They take care of D2, providing food and letting D2 live in their rented flat of about 700-800 square feet with 2 bedrooms and a living area.  In addition to paying the rental, D2’s wife also gives him a monthly allowance of $6,000.  They do not have any children, and D2 himself has no relatives in HK.

43.Ms Crebbin urges the court to treat D2 not as a typical asylum seeker because of his marriage to a HK resident who supports him financially, thereby removing his reliance on the HK government.  She also submits that D2 had fully cooperated with Customs Officers even at the scene of his arrest, unlocking the mobile phone in his hand to assist the officers to call the person who was calling him while he picked up the red white blue bag on the street corner.

44.Ms Crebbin acknowledges the fact that D2 is a Form 8 holder, and that there was more than one type of drugs being trafficked are aggravating factors, but submits that the enhancements must not to so aggressive as to be crushing.

SENTENCE

45.The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is that of a fine of $5 million and imprisonment for life. This maximum sentence applies to an attempt to commit the offence as well.

DEFENDANTS’ ROLE

46.In the case of Herry Jane Yusuph [2020] HKCA 974, the Court of Appeal provided guidance in assessing the culpability of a defendant in drug trafficking cases where he or she may be regarded as a courier:

“60. Even where the term ‘courier’ would embrace a defendant’s conduct, it is not without its difficulty of definition because it cannot often be said with certainty why a person arrested in possession of a sizeable quantity of dangerous drugs has them in his possession. It may be that he has just collected them for some unexplained purpose, or he is delivering them somewhere to someone, but it could also be that he is actually dealing in those dangerous drugs himself to others. Absent an admission, or direct or circumstantial evidence, establishing that he is himself dealing with dangerous drugs to others, the courts have generally treated him as a courier or storekeeper, to which the guidelines apply arithmetically. Subject to our observation that the role and culpability of couriers and storekeepers may differ, and that occasionally a defendant’s actions may fall short of acting as either in its intended sense, we would not wish to disturb this approach.”

47.In D1’s case, I find that she was a mere courier of the drugs. There is no evidence to suggest that she had control over how the drugs were to be transported from China into HK, nor is there evidence to suggest that she knew where the drugs would go or how they will be processed or distributed after she had received them and passed them on.

48.As for D2, although it is the prosecution’s case that he had all along been the user of the phone that he claimed belonged to ‘Dozie’ and so was the person who had sent and received the messages that suggested he had something to do with the importation of the drugs, I find that it is a possibility that the jury might not have come to their decision on that factual basis.  All that the guilty verdict confirmed is that they are sure that D2 knew that there were some kind of dangerous drugs inside the parcel in the bag.  This ‘only reasonable inference’ can be drawn even if D2 was telling the truth about him being given the phone shortly before he picked up the bag. I find that I should sentence D2 on the factual basis that is most favourable to him given the situation, which is that he is also a courier of the drugs.

49.As such, the guideline sentences are to be arithmetically applied to both the defendants.

THE COMBINED APPROACH TO SENTENCING

50.There are two types of drugs involved and I will adopt what is referred to as “the combined approach”[1] in sentencing.

51.Since Ice is a more potent drug than ketamine, I will use the sentence for the Ice as the base sentence and adjust it upwards to take into account the ketamine.

52.According to well established sentencing guidelines[2] laid down by the Court of Appeal, 2971g of Ice attracts a sentence of 24 years 11 months.

53.The guideline sentence[3] for 418g of ketamine is that of 10 years 2  months.

54.The following 3 tests are conducted to assist me in deciding on the appropriate sentences while using the combined approach.

THE ABSURDITY TEST

55.The first test is the absurdity test, where all the narcotics are treated as the more potent drug Ice. When so treated, the sentence would be 25 years 4 months. A starting point adopted under the combined approach higher than this would be regarded as being absurdly high.

THE CONVERSION TEST

56.The conversion test involves converting all the drugs into the most prominent drug, being Ice.

57.418g of ketamine has a guideline starting point of 10 years 2 months.  The quantity of Ice that would lead to a sentence of 10 years 2 months is 58g.

58.The total converted amount of Ice would, therefore, be 3029g (being 2971 + 58).  This converted amount would lead to a guideline starting point of 25 years, which is one month more than the base starting point for 2971g of Ice.

THE RATIO TEST

59.Based on the proportion of the 2 different drugs, assuming a guideline sentence of 20 years for 3389g of ketamine[4] (being the combined weight of all the drugs), the total sentence would be approximately 24.7 years.

THE STARTING POINT ADOPTED UNDER THE COMBINED APPROACH

60.Based on the fact that the sentence for just the Ice in this case alone would have a guideline starting point of 24 years and 11 months, and having considered the results of the above tests, I find that the appropriate starting point under the combine approach for both count 1 and 2 should be that of 25 years’ imprisonment, and I do so adopt.

ENHANCEMENT

No enhancement for ‘international element’

61.Although the dangerous drugs were imported into Hong Kong, there is insufficient evidence to suggest that either of the defendants had played a role in the importation.

62.In the case of HKSAR v Fong Yau Heung [2022] HKCA 258, the Court of Appeal examined the ambit and application of the aggravating factor “international element” in respect of the offence of trafficking in a dangerous drug.

63.After an extensive review of the authorities, the Court stressed that it is a question of fact and degree “which needs to feature in the conduct of the defendant for the offence for which he has been convicted. There are a variety of circumstances and shades of degree in which it may arise.” The Court reiterated their observations in HKSAR v Ali Qasim, CACC 332/2018 below:

“30. In Ali Qasim, we raised our concern about the danger of a label such as “international element” being generally applied without due regard to the particular facts and circumstances of the case in order to determine whether an international element is present, and if so, to what degree in respect of the defendant’s offending:

‘… the danger of a label such as ‘international element’ is that it can sometimes obscure the factual differences that exist between cases involving the importation (or, for that matter, exportation)  of dangerous drugs. It seems to us that there is a tangible distinction, for example, between a defendant who, pursuant to the elaborate arrangements of an international syndicate, crosses continents from a foreign country and arrives at Hong Kong International Airport with dangerous drugs secreted within his baggage or person, and a defendant who goes to the Post Office on someone else’s instruction to collect a parcel posted from abroad which he knows contains dangerous drugs. The first defendant can be said to be actually importing dangerous drugs into Hong Kong, while the second defendant is generally aiding and abetting someone else’s active importation; although, of course, the evidence may sometimes establish that he himself is the importer. Both are plainly guilty of trafficking in dangerous drugs but their culpability may differ.’

We continued:

In distinguishing between these two types of trafficking, we are not to be taken as suggesting that the conduct of a defendant who collects a parcel containing dangerous drugs from a post office is necessarily any less serious or culpable than a defendant who carries drugs across the border into Hong Kong. We can envisage circumstances where someone who collects a consignment of dangerous drugs concealed in seemingly innocuous merchandise, which he has organised and made elaborate efforts to disguise and import through legitimate cargo channels, may be just as, if not more, culpable than the person who crosses the border with dangerous drugs secreted in his possession. Much will depend on the facts of the case and the extent of the involvement of the defendant. However, we would caution sentencers that simply because the label of ‘international element’ can be applied to a defendant’s trafficking of a kilogram of heroin or cocaine narcotic because it has come across the border, and he is connected with the offence, does not automatically mean that he must receive an enhancement of sentence of two years’ imprisonment.”

I have already found that D1 and D2 are couriers of the drugs. Based on the circumstances of their commission of the offences, I find that there is insufficient evidence to prove that they had taken part in the arrangements that caused the drugs to be sent from Malaysia to mainland China and then brought into Hong Kong. It is obvious that there were other people involved in the process and that D1 and D2 were foot soldiers engaged in the movement of the drugs in Hong Kong.

As such, I will not enhance their sentences on the basis of there being an ‘international element’.

MULTIPLE DRUGS

64.It is, however, trite law that trafficking in a variety of drugs is an aggravating factor and would warrant an enhancement of sentence[5]. For this, I would enhance the sentence of D1 and D2 each by 6 months.

D2 BEING A FORM 8 HOLDER

65.It is also trite law that a Form 8 recognizance holder committing the offence of trafficking in a dangerous drug is a ground for enhancement[6].

66.For this aggravating factor, given the amount of dangerous drugs involved, I enhance D2’s sentence by 9 months.

NO ENHANCEMENT FOR ‘PERSISTENT OFFENDER’

67.Although D2 has 4 previous convictions, none of them had anything to do with dangerous drugs.  The first set of 3 convictions are related to his overstaying, while the last one is a case of wounding.

68.Taking into consideration the sentence that he is already facing, and the nature and timing of the previous convictions, I will not enhance his sentence on the basis of this being his fifth conviction.

MITIGATING FACTORS

69.D1’s assistance in the second controlled delivery of the parcel to Baby Loves, which led to the apprehension of D2, should be recognized. For this, I will grant her a 6 months discount.

70.I will also grant D2 a reduction in sentence for the cooperation he had shown to the Customs Officer once he realised they were officers. For this, I will grant D2 a 3 months discount.

71.There are no other mitigating factors to warrant further reductions in the sentences in relation to both defendants. They were convicted after trial and there is no discount for a guilty plea.

TOTALITY

72.I have considered whether the enhancements that I have adopted would be too aggressive or might have a crushing effect on the defendants, and have concluded that they are appropriate and would not have such effect.

CONCLUSION

73.D1 is sentenced to 25 years’ imprisonment for count 1.

74.D2 is sentenced to 26 years’ imprisonment for count 2.

Mr John Marray, Counsel on fiat, for the HKSAR

Mr Duncan Percy, instructed by Messrs Francis Kong & Co assigned by DLA, for D1 

Ms Diane Crebbin instructed by Messrs Littlewoods assigned by DLA, for D2