HKSAR v. Singson Ronald Versoza

DCCC938/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 938 OF 2010

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Reasons for Sentence

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1.The defendant, Mr Ronald Versoza Singson, pleads guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The particulars of the offence are that the defendant on 11 July 2010 in Hong Kong unlawfully trafficked in dangerous drugs, namely 14.80 grammes of a powder containing 6.67 grammes of cocaine and two tablets containing a total of 8 milligrammes of Nitrazepam.

Facts Admitted

2.According to the facts admitted by the defendant on 11 July 2010 at about 2140 hours, the defendant and his companion, Benjamin Liobing (“referred to as Mr Liobing”), who had travelled from Manila to Hong Kong were intercepted off the boarding gates of the ferry to Macau in the transit area of the Hong Kong International Airport when their check-in transit luggage revealed positive alarm of cocaine on ion-scanning. Inside the suitcase of the defendant, Customs & Excise officers found a chequebook wallet containing a plastic bag containing 1.51 grammes of a powder containing 0.65 grammes of cocaine, and found a plastic bag containing two tablets of a total of 8 milligrammes of Nitrazepam. On being questioned the defendant said that the powder was cocaine while the tablets were Mogadon. The defendant was arrested and cautioned.

3.Inside a wallet carried by the defendant, a Customs & Excise officer found a plastic bag containing traces of cocaine. The defendant admitted that it was cocaine and he was then cautioned by the Customs & Excise officer again.

4.Upon a body search of the defendant, a Customs & Excise officer found tucked inside the underpants worn by the defendant two plastic bags. One of them contained 12.26 grammes of a powder containing 5.58 grammes of cocaine. The other plastic bag contained a glass bottle and a spoon. Inside the glass bottle there were 1.02 grammes of a powder containing 0.44 grammes of cocaine while the spoon contained 0.01 gramme of a powder containing cocaine.

5.When interviewed under caution the defendant admitted inter alia that he had come to Hong Kong from Manila and intended to go to Macau from the Hong Kong Airport and that the cocaine and the two tablets of Nitrazepam belonged to him.

6.The total price of the cocaine seized was HK$15,791.60.

Newton Hearing

7.The defence contends that all the cocaine found in the possession of the defendant was for the defendant’s own use. As this is not accepted by the prosecution, a Newton Hearing is conducted to determine the issue. After the hearing, the court holds that the defendant intended to have the cocaine for his own use and did not intend to sell it or share it with other people.

Criminal Records

8.The defendant has a clear criminal record.

Mitigation

9.The counsel representing the defendant points out that not all people who arrived in Hong Kong Airport in possession of dangerous drugs were charged with trafficking in dangerous drugs although they all committed the offence under section 2 of the Dangerous Drugs Ordinance. The counsel gives as an example the case of Mr Liobing who was only charged with simple possession of dangerous drugs although he was caught in possession of about 2 grammes of cocaine when he arrived in Hong Kong together with the defendant.

10.The counsel deduces that there must be a prosecution policy and reminds the court that a deviation from the prosecution policy is a ground for the court to reduce the sentence to be imposed. A number of authorities including R v Ng Tong Fong [1992] HKCLR 114 and R v Fong Chi Wood HKMA 1123/1990 are cited to the court to support this contention.

11.The counsel draws the court’s attention to the medical reports on the defendant which all state that the defendant has over the years suffered from depression and has sought solace for his condition in the use of cocaine as a form of self medication. The defendant has now realised his problem and is undergoing detoxification and it is his intention to continue with such treatment no matter what the decision of the court is in respect of the sentence on him. The counsel submits that the defendant is a person who needs help rather than one who should be incarcerated for a substantial period of time.

12.In respect of the issue of latent risk, the counsel points out that the defendant is a congressman of the Philippines and had always consumed cocaine in private although occasionally together with Mr Liobing. The defendant would discard the dangerous drugs which he did not consume and had actually done so in the past. The counsel points out that such latent risk did not exist in the present case.

13.The defendant comes from a prominent family in the Philippines and is one of seven siblings. He is well-educated with a university degree in business administration. He is single but has a two year old daughter. His father is the former governor the providence of Ilocus Sur. The defendant himself has extensive business interests and had done a lot of charitable work for his country. A number of letters of gratitude written by those whom the defendant had helped are tendered to the court. The counsel emphasises that the defendant is not only of good character in the sense of having no criminal records but has done things which have been of benefits to his country and his people. This, in the counsel’s submission is positive good character of the defendant and is a mitigating factor to be considered by the court, citing a number of authorities including AG v Yeung Kwong Chi [1989] 1 HKLR 266 and Secretary of Justice v Tso Tsz Kin [2004] 2 HKC 139 in support.

14.The counsel says that the defendant had remained in custody for 40 days before he was released on bail in the present case. He was required as a term of the bail condition to report daily to the police and he was also required to report to the Immigration Department initially every week and later every fortnight. Because of this, the defendant was unable to attend to his business and to discharge his responsibilities as a congressman of the Philippines. The counsel submits that such a situation which has lasted for about five months is akin to a type of custody.

15.The counsel also raises the sanction by the House of Representatives of the Philippines which the defendant will no doubt face and the possible criminal charges to be laid against him on his return to the Philippines as a mitigating factor, citing the authorities of HKSAR v Ho Ho Chuen [1998] 2 HKC 544; R v Maclennan [1996] 4 HKC 507 and AG v Poon Ping Kwok & Another [1992] 2 HKCLR 231.

16.The defendant pleads guilty to the charge and is remorseful. He is extremely sorry for letting his girlfriend, his friends and family down and for causing embarrassment to the Philippines nation and its legislature. The counsel asks the court to give full credit for the defendant’s remorse. The counsel submits that the present case is a unique one with extensive and huge coverage by the local and Philippines media because the defendant was a high-profile figure in his own country. The defendant not only has had a significant and public fall from grace but also has to live with the stigma of bringing shame on his countrymen during the rest of his life.

17.The counsel emphasises that sentencing guidelines are never a straitjacket. He deals with the sentencing guidelines in R v Lau Tak Ming [1990] 2 HKLR 70 which provides that up to 10 grammes of narcotics the sentence after trial is one of 2 to 5 years’ imprisonment. The counsel stresses that these guidelines are for commercial trafficking and are not applicable to the technical trafficking the defendant has committed. The counsel asks the court to adopt a starting point which is substantially below the bottom of the band in Lau Tak Ming.

18.The counsel further points out that for cases of social trafficking the sentences in appropriate circumstances can be non-custodial sentences, citing the authority of Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and HKSAR v Wong Suet Hau & Or [2002] HKLRD 69. While accepting that importing dangerous drugs into Hong Kong is a more serious offence than simple possession, the counsel for the defence, citing HKSAR v Chow Kam Lung CACC68/2010, reminds the court that the issue of whether the drug is imported for personal consumption in part or in whole is very much a factor to be taken into consideration in mitigation of sentence. The counsel asks the court to be lenient to the defendant and adopt a starting point well below 2 years’ imprisonment.

Sentence

19.Trafficking in a dangerous drug is a very serious offence. Its evil lies in its nature of making dangerous drugs more readily available to the general public resulting in more people being hooked to the illicit substance, thus ruining them and their families. The Court of Appeal in Hong Kong has laid down clear sentencing guidelines in respect of this kind of offence. The counsel for the defence rightly points out that for trafficking in cocaine the applicable guidelines are those set out in the case of Lau Tak Ming which stipulates that for a quantity of up to 10 grammes of cocaine the starting point after trial is 2 to 5 years’ imprisonment. The amount of cocaine involved in the present case is 6.67 grammes. According to these guidelines, the starting point should be one of 4 years’imprisonment.

20.The court accepts that these tariffs are meant to be used for commercial trafficking and the court also accepts that the offence of trafficking in a dangerous drug to which the defendant has pleaded guilty is technical in nature in that the defendant was caught bringing or importing the cocaine into Hong Kong from another country. This is of course a mitigating factor which the court bears in mind in this sentencing exercise.

21.InHKSAR v Wong Suet Hau & Or [2002] 1 HKLRD 69 it is said that when it is accepted that a significant portion of the drugs were for the defendant’s own consumption the court should adjust the sentence so as to reflect such a fact. The court has found after the Newton hearing that the cocaine found in the possession of the defendant was intended for his own consumption. This is obviously a mitigating factor which the court has to take into account. Having said that, it must be pointed out that although the offence in the present case is one of trafficking in a dangerous drug, in view of the finding of the court in the Newton hearing that the drugs were for the defendant’s own use, the court has to consider the latent risk of the cocaine falling into the hands of others.

22.As pointed out by the court in the Ruling in the Newton hearing, the only persons in Hong Kong or Macau known to the defendant were Mr Liobing and a person by the name Neil who according to the defendant was taking part in a poker tournament in Macau. There is no evidence to suggest that Neil was a drug addict but it is of no doubt that Mr Liobing was one. He was caught in possession of a small quantity of cocaine together with the defendant.

23.Although the court has also found that Mr Liobing was some sort of an errand boy of the defendant, there was always a risk that he would ask the defendant for cocaine when he had finished his own. Although the defendant had not intended to sell the cocaine to or share it with others, when this happened there was always a risk that he might agree to give some cocaine to Mr Liobing. It must be borne in mind that we are not talking about something which would certainly happen but about the risk of such thing happening. It is the view of the court that there was a latent risk the cocaine of the defendant might fall into the hand of other people, that is Mr Liobing, and the risk was a substantial one. This is a factor which the court has to consider in determining the sentence.

24.There is a dispute as to whether there exists a prosecuting policy in respect of people arriving at Hong Kong Airport in possession of dangerous drugs. Prosecution denies that there is such a policy. The defence alleges that Woman Inspector Kwong Yin-nei, the second prosecution witness in the Newton hearing, told the legal representative of the defendant, Mr Finch, that if the amount of dangerous drugs taken into Hong Kong was less than 10 grammes the person would only be charged with simple possession of a dangerous drug and only if the amount was in excess of 10 grammes would the offender be charged with trafficking. The prosecution denies that Woman Inspector Kong had told Mr Finch such a practice.

25.In the view of the court, whether there is such a policy and whether Woman Inspector Kong had informed Mr Finch of such practice, they do not affect the sentence in the present case. It is clear in the authorities cited by the defence that the court will only reduce the sentence if the prosecution authorities has unfairly departed from a prosecution policy.

26.In the present case, the defendant imported a substantial amount of cocaine into Hong Kong and he even hid a large part of the dangerous drugs in his underpants. In the view of the court, there is no unfairness in prosecuting him for trafficking in a dangerous drug and he is not prejudiced in any manner. This therefore does not constitute a valid ground for the court to reduce the sentence.

27.The defendant comes from a wealthy and prominent family in the Philippines. He is well-educated and has extensive business interests. He has a two year old daughter and has a movie star girlfriend. He is also a respectable congressman of the Philippines. He has virtually everything which any man will dream to have. He, however, does not treasure what he has and indulges himself in the abuse of dangerous drugs. Being an educated man, he should know very well the harm of dangerous drugs and that he should seek medical help when he encountered psychological problems instead of using cocaine as a form of self medication to seek solace. The court must say that it is sad to see a man of the defendant’s background to fall from grace but the court must point out that the defendant has asked for it himself by what he did.

28.His personal circumstances, the contribution he has made to his country and his people and the sanction of the House of Representatives he will face no doubt do not constitute valid mitigating factors should the trafficking offence he has pleaded guilty to be one for commercial purpose. Since the court has now found that the dangerous drugs were intended for his own consumption and was not for commercial purpose, the court is prepared to give him some discount in sentence in this regard.

29.Considering the tariffs laid down in Lau Tak Ming and taking into consideration the fact that the cocaine was for the defendant’s own consumption as well as the factor of latent risk, the court adopts a starting point of 2 years 6 months’ imprisonment in respect of the cocaine.

30.Giving credit to the defendant’s guilty plea, his positive good character, the sanction of the House of Representatives of the Philippines and the personal background of the defendant, the court arrives at a sentence of 1 year 4 months’ imprisonment.

31.The dangerous drugs forming the subject matter of the charge also include two tablets containing a total of 8 milligrammes of Nitrazepam. Considering the nature of the case and all the other relevant circumstances, the court is of the view that an additional sentence of 2 months’ imprisonment is sufficient to reflect the culpability. The defendant is therefore sentenced to 1 year 6 months’ imprisonment.