區域法院（刑事）Deputy District Judge Alice Chan24/11/2024[2024] HKDC 2013
DCCC552/2024
A A
B B
DCCC 552/2024
C [2024] HKDC 2013 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 552 OF 2024
F F
G ------------------------------------------ G
HKSAR
H H
V
I TAMORITE EMILIA TENDENCIA I
------------------------------------------
J J
K Before: Deputy District Judge Alice Chan K
Date: 25 November 2024
L L
Present: Ms Flavia Fung, counsel-on-fiat for HKSAR/Director of
M Public Prosecutions M
Mr Whitehouse Frederic Charles, instructed by Simon C W
N N
Yung & Co, assigned by the Director of Legal Aid, for the
O defendant O
Offence: [1] to [2] Trafficking in a dangerous drug (販運危險藥物)
P P
[3] Possession of a poison included in Part 1 of the Poisons
Q Q
List (管有毒藥表第 1 部所列毒藥)
R [4] Breach of condition of stay (違反逗留條件) R
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E CHARGES E
F F
1. The defendant pleaded guilty to the following 4 charges:-
G G
Charges 1 and 2: Trafficking in a dangerous drug, contrary to
H H
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance,
I Cap 134; I
J J
Charge 3: Possession of a poison included in Part 1 of the
K Poisons List, contrary to sections 23(1), 33(1) and 34 of the K
Pharmacy and Poisons Ordinance, Cap 138; and
L L
M Charge 4: Breach of condition of stay, contrary to section 41 M
of the Immigration Ordinance, Cap 115.
N N
O FACTS O
P P
2. On 7 September 2023, an anti-narcotics operation was
Q conducted against the bar and restaurant area in Wan Chai. At around 2005 Q
hours, when PC25403 (“PW1”) posed as a customer was patrolling at
R R
Haven Street, an unknown man approached him and asked if he wanted to
S purchase some weed at HK$300. PW1 agreed and was instructed to go to S
the location as particularised in Charge 1. He then saw the defendant
T T
appear and pass to PW1 a small package containing a dangerous drug later
U U
V V
-3-
A A
B B
confirmed to be 2.60 grammes of cannabis in herbal form. This is the
C subject matter for Charge 1. C
D D
3. Another operation was mounted on 25 September 2023. At
E 1913 hours, PW1 saw the defendant entering a building in Electric Road, E
North Point. The defendant was intercepted and upon questioning she was
F F
found to be living in a flat on 1st Floor of that building. She opened the
G door of the flat with her key. Upon search by the police at the premises, a G
variety of dangerous drugs as particularised in Charge 2 and set out as
H H
follows were found being stored in different parts of a cabinet in the living
I room of the flat:- I
J J
(i) 6658.2 grammes of a solid containing traces of
K tetrahydrocannabinol (“THC”); K
L L
(ii) 7.91 grammes of a solid containing 0.07 grammes of
M M
THC;
N N
(iii) 19.46 grammes of a liquid containing 13.72 grammes
O O
of THC;
P P
(iv) 67.9 grammes of a solid containing 0.42 grammes of
Q Q
psilocin;
R R
(v) 163.72 grammes of cannabis in herbal form;
S S
T T
U U
V V
-4-
A A
B B
(vi) 9.93 grammes of a solid containing 7.50 grammes of
C 3,4-methylenedioxymethamphetamine, or commonly C
known as ecstasy;
D D
E (vii) 85 tablets containing a total of 14.1 grammes of ecstasy; E
F F
(viii) 3.79 grammes of a crystalline solid containing 3.78
G grammes of ICE; G
H H
(ix) 1.27 grammes of a solid containing 0.87 grammes of
I cocaine; and I
J J
(x) 10 pieces of paper containing traces of lysergide.
K K
4. Police also found 9 devices containing a total of 250.4
L L
grammes of a liquid containing nicotine, which is a listed Part 1 poison and
M subject matter for Charge 3, 2 digital scales and a large quantities of M
resealable plastic bags in the flat.
N N
O 5. Upon arrest and under caution at the scene, the defendant O
admitted selling the dangerous drugs for earning money.
P P
Q 6. The defendant was discovered to be an overstayer as her last Q
domestic helper employment contract had expired on 9 July 2020 and she
R R
remained in Hong Kong without applying for any further extension of stay.
S S
T T
U U
V V
-5-
A A
B B
MITIGATION
C C
7. The defendant is now 45 years old and has a clear criminal
D D
record. She came to Hong Kong in 2006 to work as a domestic helper. She
E has 3 adult children who are residing in the Philippines. Mr Whitehouse, E
counsel representing the defendant, suggested that the “combined
F F
approach” should be adopted in dealing with the sentence in respect of
G Charge 2. He also proposed that concurrent sentence to be imposed in G
relation to Charges 1 to 3 while the sentence on Charge 4 is to run
H H
consecutively.
I I
REASONS FOR SENTENCE
J J
K Charge 1 K
L L
8. In HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, the
M Court of Appeal held that the sentence for trafficking under 2,000 grammes M
of herbal cannabis is up to 16 months. In view of the very small quantity
N N
of herbal cannabis involved and taking into account of the defendant’s role
O as a courier in this incident, I adopt a starting point of 6 weeks’ O
imprisonment. The only mitigating factor is the defendant’s guilty plea
P P
and the sentence is discounted by one-third to 4 weeks’ imprisonment.
Q Q
Charge 2
R R
S 9. This charge involves a variety of dangerous drugs in different S
forms and the narcotic contents include:
T T
U U
V V
-6-
A A
B B
(i) 13.79 grammes of THC;
C (ii) 163.72 grammes of herbal cannabis; C
(iii) 0.87 grammes of cocaine;
D D
(iv) 3.78 grammes of Ice;
E (v) 0.42 grammes of psilocin; E
(vi) 21.60 grammes of ecstasy; and
F F
(vii) traces of lysergide.
G G
10. The sentencing guidelines for trafficking in Ice were set out
H H
by the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
I The starting point after trial where the quantity of narcotic is up to 10 I
grammes is between 3 and 7 years imprisonment. The starting point for
J J
trafficking in 3.78 grammes of Ice would be around 4 years and 6 months’
K imprisonment (54 months). K
L L
11. In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD
M 1, the sentencing guidelines for trafficking in ecstasy were laid down by M
the Court of Appeal. The starting point upon conviction where the quantity
N N
of narcotic is from 10 to 50 grammes is between 4 and 6 years’
O imprisonment. The starting point for trafficking in 21.6 grammes of O
ecstasy is 4 years 7 months’ imprisonment (55 months).
P P
Q 12. The sentencing guidelines for trafficking in heroin as laid Q
down by the Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370 are
R R
also applicable in the sentencing of cases in respect of trafficking in
S cocaine. The starting point upon conviction after trial where the quantity S
of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.
T T
U U
V V
-7-
A A
B B
The starting point for trafficking in 0.87 grammes of cocaine would be 2
C years and 3 months’ imprisonment (27 months). C
D D
13. As mentioned above, the sentence for trafficking under 2,000
E grammes of herbal cannabis is up to 16 months. In view of the quantity of E
THC and herbal cannabis involved in Charge 2, the sentence for trafficking
F F
in the drug will become negligible. The court is prepared not to take into
G account the quantity of this drug in the sentence for Charge 2. G
H H
14. As for the 0.42 grammes of psilocin and traces of lysergide
I found, while there are no sentencing tariffs for these drugs, both I
prosecution and defence agreed that their potency are similar to that of
J J
MDMA or ecstasy. In the circumstances, the sentencing guidelines as laid
K down in Hii Siew Cheng are also applicable. That said, even adding the K
quantity of psilocin (ie 0.42 grammes) to that of the ecstasy involved in
L L
Charge 2, upon calculation, the starting point of 55 months’ imprisonment
M as mentioned in paragraph 11 above, is unaffected. M
N N
15. If the “individual approach” is adopted for sentencing (i.e.
O O
based on quantity alone), by adding the three starting points
P aforementioned in paragraphs 10 to 12, the overall starting point would be P
around 11 years and 4 months’ imprisonment (136 months) and
Q Q
undoubtedly too excessive.
R R
16. In HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, the
S S
Court of Appeal revisited the “ individual approach” and the “combined
T approach” used in sentencing a defendant who was found guilty of T
U U
V V
-8-
A A
B B
trafficking in multiple drugs and set out the methodology to be used. In
C giving the judgment of the Court, Zervos JA said:- C
D D
“24. The combined approach involves the calculation of the
applicable sentence for the more or most serious drug (in terms
E of potency), and then adjusting the sentence upwards to take into E
account significant quantities of other (less serious) drugs. In
carrying out this task, the sentencing court should take a
F common sense approach in determining which drug is to be the F
base drug in order to calculate the starting point. There may be
G cases where the more or most serious drug is of such a small G
quantity that it would be unrealistic to use it as the base drug.
As stated, it will be a matter of common sense.”
H H
17. As stated in paragraph 15 above, the overall starting point for
I I
the drugs concerned is considered to be excessively high. I consider that
J the “combined approach” should be adopted in determining the starting J
point for Charge 2. In this case, the most potent drug is Ice and it is
K K
considered appropriate to take Ice as the base drug for sentencing and make
L L
adjustments for the other drugs that were present.
M M
18. According to the sentencing guidelines for trafficking in 3.78
N N
grammes of Ice, the starting point is 54 months. In HKSAR v Herry Jane
O Yusuph [2021] 1 HKLRD 290, the Court of Appeal said, at para 60: O
“Absent an admission, or direct or circumstantial evidence, establishing
P P
that he is himself dealing with dangerous drugs to others, the courts have
Q generally treated him as a courier or storekeeper, to which the guidelines Q
apply arithmetically.” On the facts of the present case, I find the defendant
R R
to be a storekeeper and I adopt a starting point of sentence of 54 months.
S S
T T
U U
V V
-9-
A A
B B
19. It is now incumbent on the court to determine by how much
C this starting point should be enhanced to allow for the quantity of ecstasy C
and cocaine.
D D
E 20. The Court of Appeal in HKSAR v Chan Yuk Leong E
CACC 318/2013 applied the 3 tests to cross-check the starting point in a
F F
charge involving multiple drugs.
G G
The absurdity test
H H
I 21. Applying the absurdity test, if all the drugs (26.25 grammes I
in total) were Ice, the starting point based on quantity alone would be
J J
almost 8 years 1 months’ imprisonment (97 months).
K K
The conversion test
L L
M 22. If the ecstasy and heroin seized in this case were converted to M
Ice, the converted quantity is 3.95 grammes of Ice. Adding the converted
N N
quantity (3.95 grammes) to the 3.78 grammes of Ice seized, it results in
O 7.73 grammes of Ice. The conversion test based on the Ice sentencing O
guidelines is 6 years and 1 months (73 months).
P P
Q 23. If the Ice and ecstasy seized were converted to cocaine, the Q
converted quantities are 8.37 grammes and 8.6 grammes respectively (i.e.
R R
16.97 grammes in total). Adding the converted quantities to the 0.87
S grammes of cocaine seized, it results in 17.84 grammes of cocaine. The S
conversion test based on the cocaine sentencing guidelines is 5 years and
T T
7 months (67 months).
U U
V V
- 10 -
A A
B B
24. If the Ice and cocaine seized were converted to ecstasy, the
C converted quantities are 20.24 grammes and 2.17 grammes respectively. C
Adding the converted quantities to the 21.6 grammes of ecstasy seized, it
D D
results in a total of 44.01 grammes of ecstasy. The conversion test based
E on the ecstasy sentencing guidelines is 5 years and 8 months (68 months). E
F F
The ratio test
G G
25. The total quantity of cocaine, Ice and ecstasy is 26.25
H H
grammes.
I I
26. The calculation on applying the “ratio test”, on the basis that
J J
cocaine accounted for 3.31% in weight of the total quantity seized
K (0.87/26.25), 14.4% for Ice and 82.29% for ecstasy, is set out below:- K
L L
Drug Sentence Ratio Calculated Sentence
(assuming 26.25
M M
grammes of single drug)
Cocaine 74.6 months 3.31% Around 2.47 months
N (0.87 grammes) N
Ice 97 months 14.40% Around 14 months
O (3.78 grammes) O
Ecstasy 57.8 months 82.29% Around 47.57 months
P (21.6 grammes) P
5 years 4 months
TOTAL
Q
(= 64 months) Q
R R
S S
Starting point
T T
U U
V V
- 11 -
A A
B B
27. Taking all the aforesaid matters into account to calculate a
C reasonable and realistic increase to the 54 months’ starting point, I consider C
it appropriate to increase by 12 months to 66 months’ imprisonment.
D D
E Aggravating factor E
F F
28. It has been said that one aggravating feature is the ability of
G the trafficker to cater to a wider market (see HKSAR v Chan Yuk Leong at G
para 24). Given that the defendant had trafficked in a wide variety of
H H
dangerous drugs, I enhance the starting point by 3 months to 69 months’
I imprisonment. I
J J
Mitigating factor
K K
29. The defendant has entered a timely plea and is therefore
L L
entitled to a one-third discount of sentence from the starting point. It has
M long been held that the element of good character or lack of previous M
conviction has been included in the one-third discount for guilty plea (see
N N
Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139). There is, therefore,
O no other valid mitigating factor which justifies a further reduction of O
sentence. The sentence of Charge 2 is reduced to 46 months’
P P
imprisonment.
Q Q
R R
S S
Charge 3
T T
U U
V V
- 12 -
A A
B B
30. The summary offence of possession of a poison included in
C Part 1 of the Poisons List carries a maximum sentence of level 6 fine and C
2 years’ imprisonment. In this case, 9 devices containing a total of 250.4
D D
grammes of a liquid containing nicotine were found in the defendant’s flat.
E The nature of the offence is relatively trivial and I adopt a starting point of E
3 weeks’ imprisonment. The defendant is also entitled to a full one-third
F F
discount of sentence. The sentence of Charge 3 is reduced to 2 weeks’
G imprisonment. G
H H
Charge 4
I I
31. The maximum penalty for the offence of breach of condition
J J
of stay is a fine at level 5 and 2 years’ imprisonment. There is no tariff for
K overstaying and the Court of Appeal in HKSAR v Tiongson Patricia K
Manalad [2002] 1 HKLRD 681 held that the court would look at the length
L L
of overstay and taking up employment was an aggravating factor.
M M
32. The defendant was no longer allowed to stay in Hong Kong
N N
after her work visa expired on 9 July 2020. She overstayed for more than
O 3 years before she was arrested on 25 September 2023. It is considered O
that the appropriate starting point is 3 months’ imprisonment. Again, she
P P
is also entitled to a full one-third discount of sentence for her guilty plea
Q and the sentence for Charge 4 is reduced to 2 months’ imprisonment. Q
R R
S S
TOTALITY
T T
U U
V V
- 13 -
A A
B B
33. All these offences are separate and distinct. The sentences
C imposed on each charge should be served consecutively. However, I have C
to consider the totality principle.
D D
E 34. As such, I order that the sentence of Charges 1, 2 and 3 be E
served concurrently with each other, making a total of 46 months’
F F
imprisonment.
G G
35. The immigration offence of breach of condition of stay is of a
H H
completely different nature. The sentence of Charge 4 is to serve wholly
I consecutive to the sentence of Charges 1, 2 and 3. I
J J
36. The defendant is sentenced to a total term of 48 months’
K imprisonment. K
L L
M M
( Alice Chan )
N N
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
V V
DCCC552/2024 HKSAR v. TAMORITE EMILIA TENDENCIA - LawHero
A A
B B
DCCC 552/2024
C [2024] HKDC 2013 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 552 OF 2024
F F
G ------------------------------------------ G
HKSAR
H H
V
I TAMORITE EMILIA TENDENCIA I
------------------------------------------
J J
K Before: Deputy District Judge Alice Chan K
Date: 25 November 2024
L L
Present: Ms Flavia Fung, counsel-on-fiat for HKSAR/Director of
M Public Prosecutions M
Mr Whitehouse Frederic Charles, instructed by Simon C W
N N
Yung & Co, assigned by the Director of Legal Aid, for the
O defendant O
Offence: [1] to [2] Trafficking in a dangerous drug (販運危險藥物)
P P
[3] Possession of a poison included in Part 1 of the Poisons
Q Q
List (管有毒藥表第 1 部所列毒藥)
R [4] Breach of condition of stay (違反逗留條件) R
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E CHARGES E
F F
1. The defendant pleaded guilty to the following 4 charges:-
G G
Charges 1 and 2: Trafficking in a dangerous drug, contrary to
H H
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance,
I Cap 134; I
J J
Charge 3: Possession of a poison included in Part 1 of the
K Poisons List, contrary to sections 23(1), 33(1) and 34 of the K
Pharmacy and Poisons Ordinance, Cap 138; and
L L
M Charge 4: Breach of condition of stay, contrary to section 41 M
of the Immigration Ordinance, Cap 115.
N N
O FACTS O
P P
2. On 7 September 2023, an anti-narcotics operation was
Q conducted against the bar and restaurant area in Wan Chai. At around 2005 Q
hours, when PC25403 (“PW1”) posed as a customer was patrolling at
R R
Haven Street, an unknown man approached him and asked if he wanted to
S purchase some weed at HK$300. PW1 agreed and was instructed to go to S
the location as particularised in Charge 1. He then saw the defendant
T T
appear and pass to PW1 a small package containing a dangerous drug later
U U
V V
-3-
A A
B B
confirmed to be 2.60 grammes of cannabis in herbal form. This is the
C subject matter for Charge 1. C
D D
3. Another operation was mounted on 25 September 2023. At
E 1913 hours, PW1 saw the defendant entering a building in Electric Road, E
North Point. The defendant was intercepted and upon questioning she was
F F
found to be living in a flat on 1st Floor of that building. She opened the
G door of the flat with her key. Upon search by the police at the premises, a G
variety of dangerous drugs as particularised in Charge 2 and set out as
H H
follows were found being stored in different parts of a cabinet in the living
I room of the flat:- I
J J
(i) 6658.2 grammes of a solid containing traces of
K tetrahydrocannabinol (“THC”); K
L L
(ii) 7.91 grammes of a solid containing 0.07 grammes of
M M
THC;
N N
(iii) 19.46 grammes of a liquid containing 13.72 grammes
O O
of THC;
P P
(iv) 67.9 grammes of a solid containing 0.42 grammes of
Q Q
psilocin;
R R
(v) 163.72 grammes of cannabis in herbal form;
S S
T T
U U
V V
-4-
A A
B B
(vi) 9.93 grammes of a solid containing 7.50 grammes of
C 3,4-methylenedioxymethamphetamine, or commonly C
known as ecstasy;
D D
E (vii) 85 tablets containing a total of 14.1 grammes of ecstasy; E
F F
(viii) 3.79 grammes of a crystalline solid containing 3.78
G grammes of ICE; G
H H
(ix) 1.27 grammes of a solid containing 0.87 grammes of
I cocaine; and I
J J
(x) 10 pieces of paper containing traces of lysergide.
K K
4. Police also found 9 devices containing a total of 250.4
L L
grammes of a liquid containing nicotine, which is a listed Part 1 poison and
M subject matter for Charge 3, 2 digital scales and a large quantities of M
resealable plastic bags in the flat.
N N
O 5. Upon arrest and under caution at the scene, the defendant O
admitted selling the dangerous drugs for earning money.
P P
Q 6. The defendant was discovered to be an overstayer as her last Q
domestic helper employment contract had expired on 9 July 2020 and she
R R
remained in Hong Kong without applying for any further extension of stay.
S S
T T
U U
V V
-5-
A A
B B
MITIGATION
C C
7. The defendant is now 45 years old and has a clear criminal
D D
record. She came to Hong Kong in 2006 to work as a domestic helper. She
E has 3 adult children who are residing in the Philippines. Mr Whitehouse, E
counsel representing the defendant, suggested that the “combined
F F
approach” should be adopted in dealing with the sentence in respect of
G Charge 2. He also proposed that concurrent sentence to be imposed in G
relation to Charges 1 to 3 while the sentence on Charge 4 is to run
H H
consecutively.
I I
REASONS FOR SENTENCE
J J
K Charge 1 K
L L
8. In HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, the
M Court of Appeal held that the sentence for trafficking under 2,000 grammes M
of herbal cannabis is up to 16 months. In view of the very small quantity
N N
of herbal cannabis involved and taking into account of the defendant’s role
O as a courier in this incident, I adopt a starting point of 6 weeks’ O
imprisonment. The only mitigating factor is the defendant’s guilty plea
P P
and the sentence is discounted by one-third to 4 weeks’ imprisonment.
Q Q
Charge 2
R R
S 9. This charge involves a variety of dangerous drugs in different S
forms and the narcotic contents include:
T T
U U
V V
-6-
A A
B B
(i) 13.79 grammes of THC;
C (ii) 163.72 grammes of herbal cannabis; C
(iii) 0.87 grammes of cocaine;
D D
(iv) 3.78 grammes of Ice;
E (v) 0.42 grammes of psilocin; E
(vi) 21.60 grammes of ecstasy; and
F F
(vii) traces of lysergide.
G G
10. The sentencing guidelines for trafficking in Ice were set out
H H
by the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
I The starting point after trial where the quantity of narcotic is up to 10 I
grammes is between 3 and 7 years imprisonment. The starting point for
J J
trafficking in 3.78 grammes of Ice would be around 4 years and 6 months’
K imprisonment (54 months). K
L L
11. In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD
M 1, the sentencing guidelines for trafficking in ecstasy were laid down by M
the Court of Appeal. The starting point upon conviction where the quantity
N N
of narcotic is from 10 to 50 grammes is between 4 and 6 years’
O imprisonment. The starting point for trafficking in 21.6 grammes of O
ecstasy is 4 years 7 months’ imprisonment (55 months).
P P
Q 12. The sentencing guidelines for trafficking in heroin as laid Q
down by the Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370 are
R R
also applicable in the sentencing of cases in respect of trafficking in
S cocaine. The starting point upon conviction after trial where the quantity S
of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.
T T
U U
V V
-7-
A A
B B
The starting point for trafficking in 0.87 grammes of cocaine would be 2
C years and 3 months’ imprisonment (27 months). C
D D
13. As mentioned above, the sentence for trafficking under 2,000
E grammes of herbal cannabis is up to 16 months. In view of the quantity of E
THC and herbal cannabis involved in Charge 2, the sentence for trafficking
F F
in the drug will become negligible. The court is prepared not to take into
G account the quantity of this drug in the sentence for Charge 2. G
H H
14. As for the 0.42 grammes of psilocin and traces of lysergide
I found, while there are no sentencing tariffs for these drugs, both I
prosecution and defence agreed that their potency are similar to that of
J J
MDMA or ecstasy. In the circumstances, the sentencing guidelines as laid
K down in Hii Siew Cheng are also applicable. That said, even adding the K
quantity of psilocin (ie 0.42 grammes) to that of the ecstasy involved in
L L
Charge 2, upon calculation, the starting point of 55 months’ imprisonment
M as mentioned in paragraph 11 above, is unaffected. M
N N
15. If the “individual approach” is adopted for sentencing (i.e.
O O
based on quantity alone), by adding the three starting points
P aforementioned in paragraphs 10 to 12, the overall starting point would be P
around 11 years and 4 months’ imprisonment (136 months) and
Q Q
undoubtedly too excessive.
R R
16. In HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, the
S S
Court of Appeal revisited the “ individual approach” and the “combined
T approach” used in sentencing a defendant who was found guilty of T
U U
V V
-8-
A A
B B
trafficking in multiple drugs and set out the methodology to be used. In
C giving the judgment of the Court, Zervos JA said:- C
D D
“24. The combined approach involves the calculation of the
applicable sentence for the more or most serious drug (in terms
E of potency), and then adjusting the sentence upwards to take into E
account significant quantities of other (less serious) drugs. In
carrying out this task, the sentencing court should take a
F common sense approach in determining which drug is to be the F
base drug in order to calculate the starting point. There may be
G cases where the more or most serious drug is of such a small G
quantity that it would be unrealistic to use it as the base drug.
As stated, it will be a matter of common sense.”
H H
17. As stated in paragraph 15 above, the overall starting point for
I I
the drugs concerned is considered to be excessively high. I consider that
J the “combined approach” should be adopted in determining the starting J
point for Charge 2. In this case, the most potent drug is Ice and it is
K K
considered appropriate to take Ice as the base drug for sentencing and make
L L
adjustments for the other drugs that were present.
M M
18. According to the sentencing guidelines for trafficking in 3.78
N N
grammes of Ice, the starting point is 54 months. In HKSAR v Herry Jane
O Yusuph [2021] 1 HKLRD 290, the Court of Appeal said, at para 60: O
“Absent an admission, or direct or circumstantial evidence, establishing
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that he is himself dealing with dangerous drugs to others, the courts have
Q generally treated him as a courier or storekeeper, to which the guidelines Q
apply arithmetically.” On the facts of the present case, I find the defendant
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to be a storekeeper and I adopt a starting point of sentence of 54 months.
S S
T T
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A A
B B
19. It is now incumbent on the court to determine by how much
C this starting point should be enhanced to allow for the quantity of ecstasy C
and cocaine.
D D
E 20. The Court of Appeal in HKSAR v Chan Yuk Leong E
CACC 318/2013 applied the 3 tests to cross-check the starting point in a
F F
charge involving multiple drugs.
G G
The absurdity test
H H
I 21. Applying the absurdity test, if all the drugs (26.25 grammes I
in total) were Ice, the starting point based on quantity alone would be
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almost 8 years 1 months’ imprisonment (97 months).
K K
The conversion test
L L
M 22. If the ecstasy and heroin seized in this case were converted to M
Ice, the converted quantity is 3.95 grammes of Ice. Adding the converted
N N
quantity (3.95 grammes) to the 3.78 grammes of Ice seized, it results in
O 7.73 grammes of Ice. The conversion test based on the Ice sentencing O
guidelines is 6 years and 1 months (73 months).
P P
Q 23. If the Ice and ecstasy seized were converted to cocaine, the Q
converted quantities are 8.37 grammes and 8.6 grammes respectively (i.e.
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16.97 grammes in total). Adding the converted quantities to the 0.87
S grammes of cocaine seized, it results in 17.84 grammes of cocaine. The S
conversion test based on the cocaine sentencing guidelines is 5 years and
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7 months (67 months).
U U
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A A
B B
24. If the Ice and cocaine seized were converted to ecstasy, the
C converted quantities are 20.24 grammes and 2.17 grammes respectively. C
Adding the converted quantities to the 21.6 grammes of ecstasy seized, it
D D
results in a total of 44.01 grammes of ecstasy. The conversion test based
E on the ecstasy sentencing guidelines is 5 years and 8 months (68 months). E
F F
The ratio test
G G
25. The total quantity of cocaine, Ice and ecstasy is 26.25
H H
grammes.
I I
26. The calculation on applying the “ratio test”, on the basis that
J J
cocaine accounted for 3.31% in weight of the total quantity seized
K (0.87/26.25), 14.4% for Ice and 82.29% for ecstasy, is set out below:- K
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Drug Sentence Ratio Calculated Sentence
(assuming 26.25
M M
grammes of single drug)
Cocaine 74.6 months 3.31% Around 2.47 months
N (0.87 grammes) N
Ice 97 months 14.40% Around 14 months
O (3.78 grammes) O
Ecstasy 57.8 months 82.29% Around 47.57 months
P (21.6 grammes) P
5 years 4 months
TOTAL
Q
(= 64 months) Q
R R
S S
Starting point
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A A
B B
27. Taking all the aforesaid matters into account to calculate a
C reasonable and realistic increase to the 54 months’ starting point, I consider C
it appropriate to increase by 12 months to 66 months’ imprisonment.
D D
E Aggravating factor E
F F
28. It has been said that one aggravating feature is the ability of
G the trafficker to cater to a wider market (see HKSAR v Chan Yuk Leong at G
para 24). Given that the defendant had trafficked in a wide variety of
H H
dangerous drugs, I enhance the starting point by 3 months to 69 months’
I imprisonment. I
J J
Mitigating factor
K K
29. The defendant has entered a timely plea and is therefore
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entitled to a one-third discount of sentence from the starting point. It has
M long been held that the element of good character or lack of previous M
conviction has been included in the one-third discount for guilty plea (see
N N
Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139). There is, therefore,
O no other valid mitigating factor which justifies a further reduction of O
sentence. The sentence of Charge 2 is reduced to 46 months’
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imprisonment.
Q Q
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Charge 3
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A A
B B
30. The summary offence of possession of a poison included in
C Part 1 of the Poisons List carries a maximum sentence of level 6 fine and C
2 years’ imprisonment. In this case, 9 devices containing a total of 250.4
D D
grammes of a liquid containing nicotine were found in the defendant’s flat.
E The nature of the offence is relatively trivial and I adopt a starting point of E
3 weeks’ imprisonment. The defendant is also entitled to a full one-third
F F
discount of sentence. The sentence of Charge 3 is reduced to 2 weeks’
G imprisonment. G
H H
Charge 4
I I
31. The maximum penalty for the offence of breach of condition
J J
of stay is a fine at level 5 and 2 years’ imprisonment. There is no tariff for
K overstaying and the Court of Appeal in HKSAR v Tiongson Patricia K
Manalad [2002] 1 HKLRD 681 held that the court would look at the length
L L
of overstay and taking up employment was an aggravating factor.
M M
32. The defendant was no longer allowed to stay in Hong Kong
N N
after her work visa expired on 9 July 2020. She overstayed for more than
O 3 years before she was arrested on 25 September 2023. It is considered O
that the appropriate starting point is 3 months’ imprisonment. Again, she
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is also entitled to a full one-third discount of sentence for her guilty plea
Q and the sentence for Charge 4 is reduced to 2 months’ imprisonment. Q
R R
S S
TOTALITY
T T
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V V
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A A
B B
33. All these offences are separate and distinct. The sentences
C imposed on each charge should be served consecutively. However, I have C
to consider the totality principle.
D D
E 34. As such, I order that the sentence of Charges 1, 2 and 3 be E
served concurrently with each other, making a total of 46 months’
F F
imprisonment.
G G
35. The immigration offence of breach of condition of stay is of a
H H
completely different nature. The sentence of Charge 4 is to serve wholly
I consecutive to the sentence of Charges 1, 2 and 3. I
J J
36. The defendant is sentenced to a total term of 48 months’
K imprisonment. K
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M M
( Alice Chan )
N N
Deputy District Judge
O O
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Q Q
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