A A
B B
DCCC 1306/2024
C [2025] HKDC 1361 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1306 OF 2024
F F
G -------------------------------------------- G
HKSAR
H H
v
I NUNAG DOMINGO MALLARI I
--------------------------------------------
J J
K Before: His Honour Judge Tam K
Date: 7 August 2025
L L
Present: Mr Tan Xiao Yi, Ivan, Public Prosecutor, for HKSAR
M Mr Boyton David Rex, instructed by Kevin L H Kwong & M
Co, assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1] Trafficking in a dangerous drug（販運危險藥物）
O O
[2] Possession of poison included in Part 1 of the Poisons
P
List（管有毒藥表第 1 部所列毒藥） P
[3] Importing goods to which the Dutiable Commodities
Q Q
Ordinance applied（進口《應課稅品條例》適用的貨品）
R [4] Failing to declare to a member of the Customs and R
Excise Service（沒有向香港海關人員申報）
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. Mr Nunag pleaded guilty before me to four charges on a E
Charge Sheet as follows.
F F
G 2. Charge 1 is Trafficking in a dangerous drug, contrary to G
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
H H
Particulars are that he, on 17 May 2024, at Customs Arrival Hall, Hong
I Kong – Macau Ferry Terminal, Sheung Wan, in Hong Kong, unlawfully I
trafficked in a dangerous drug, namely 2.48 grammes of a crystalline solid
J J
containing 2.47 grammes of methamphetamine hydrochloride.
K K
3. Charge 2 is Possession of poison included in Part 1 of the
L L
Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and
M Poisons Ordinance, Cap 138. Particulars are that he, on the same date, at M
the same place, in Hong Kong, had in his possession a poison included in
N N
Part 1 of the Poisons List, namely one tablet containing sildenafil,
O otherwise than in accordance with the provisions of the Pharmacy and O
Poisons Ordinance, Chapter 138.
P P
Q 4. Charge 3 is Importing goods to which the Dutiable Q
Commodities Ordinance applied, contrary to sections 17(1) and 46(3) of
R R
the Dutiable Commodities Ordinance, Cap 109. Particulars are that he, on
S the same date, at the same place, in Hong Kong, imported goods to which S
the Dutiable Commodities Ordinance, Cap 109, applied, namely one bottle
T T
of whisky and 21 pieces of dutiable cigarettes, otherwise than in
U U
V V
-3-
A A
B B
accordance with the provision of paragraph (a) or (b) of section 17(1) of
C the Dutiable Commodities Ordinance, Cap 109. C
D D
5. Charge 4 is Failing to declare to a member of the Customs and
E Excise Service, contrary to sections 34A(1) and (3) and 46(3) of the E
Dutiable Commodities Ordinance, Cap 109. Particulars are that he, on the
F F
same date, at the same place, in Hong Kong, being a person entering Hong
G Kong at an entry point, failed to declare to a member of the Customs and G
Excise Service the quantity of dutiable goods, namely one bottle of whisky
H H
and 21 pieces of dutiable cigarettes, contained in his luggage which were
I in excess of the quantities that the Commissioner of Customs and Excise I
had published in the Gazette.
J J
K Facts admitted by Mr Nunag K
L L
6. On 17 May 2024, at about 0013 hours, Mr Nunag entered
M Hong Kong via the Hong Kong – Macau Ferry Terminal (“HMFT”). M
N N
7. When Mr Nunag was clearing customs at HMFT, a Customs
O officer intercepted him and escorted him to a nearby counter for conducting O
a baggage inspection.
P P
Q 8. Upon inspection, Customs found a bottle of Scotch whisky (1 Q
litre, 40% alcohol concentration) (E1) and 40 cigarettes (21 of which were
R R
seized as E2) in Mr Nunag’s luggage. He was immediately cautioned for
S not making a customs declaration in relation there to. Under caution, Mr S
Nunag stated that E1 and E2 were possessed for purposes of self-
T T
consumption.
U U
V V
-4-
A A
B B
C 9. Upon body search, it was discovered that there was a grey C
coloured drawstring bag (“the Bag”) placed within Mr Nunag’s
D D
underpants. Upon being asked about the contents of the Bag, Mr Nunag
E threw the Bag into his mouth. Mr Nunag was restrained physically to E
prevent him from swallowing the Bag.
F F
G 10. Mr Nunag spitted out the Bag which was found to contain: G
H H
(a) Four cellotaped plastic bags containing a total of 2.48
I grammes of a crystalline solid containing 2.47 I
grammes of methamphetamine hydrochloride (E3); and
J J
K (b) One plastic bag containing one tablet containing K
sildenafil, a listed Part 1 Poison.
L L
M 11. Mr Nunag was arrested on 17 May 2024. Under caution, he M
admitted that E3 pertained to a type of dangerous drug “ICE”; and E4
N N
pertained to a tablet of Viagra for his own use.
O O
12. A subsequent cautioned VRI was conducted with Mr Nunag
P P
in which he stated:
Q Q
(a) E1 and E2 were purchased at a Duty-free Shop in
R R
Macau;
S S
(b) He had not obtained any licenses or certificates to
T T
import E1 and E2;
U U
V V
-5-
A A
B B
C (c) He did not make any declaration for E1 and E2 to any C
customs officer;
D D
E (d) He bought E3 from a Pakistani male in Macau for a E
price of HK$400; and
F F
G (e) He was a habitual user of drugs. G
H H
13. The average market value of E3 was about $1,366 at the
I material time. I
J J
14. Mr Nunag now admits that at the material time, he unlawfully
K trafficked in E3, by importing the same into Hong Kong. K
L L
15. Mr Nunag now admits that at the material time, he imported
M into Hong Kong one bottle of whisky and 21 pieces of dutiable cigarettes M
which were goods to which the Dutiable Commodities Ordinance applied;
N N
he admits that he failed to declare these dutiable goods to a member of the
O Customs and Excise Service at the material time. O
P P
Criminal record
Q Q
16. Mr Nunag has 9 previous convictions of which 5 were for
R R
possession of dangerous drug, one was for trafficking in dangerous drug
S and two were for possession of Part 1 Poison. S
T T
U U
V V
-6-
A A
B B
Antecedents
C C
17. Mr Nunag is aged 58 (57 at the time of the offences). Mr
D D
Nunag is divorced. At the time of arrest, he was working as a bar manager
E and was living in private housing in Sai Ying Pun. E
F F
Mitigation
G G
18. Mr David Boyton of counsel assigned by the Director of Legal
H H
Aid mitigated on behalf of Mr Nunag. The following is a summary of the
I mitigation submissions. I
J J
19. Mr Nunag was born and educated in the Philippines (up to
K Grade 9). He has seven siblings; he is the third oldest. Two sisters and a K
brother have settled and taken up permanent residence in Hong Kong.
L L
M 20. Mr Nunag came to work and settled in Hong Kong in 1991. M
He married around 2003/2004 and divorced in 2016. He has a permanent
N N
HKID card. He has three daughters from that marriage aged 24, 12, and
O 12 and they all live in USA. Mr Nunag’s mother (in her 80s) lives in the O
Philippines.
P P
Q 21. The bar at which Mr Nunag has worked as a bar manager has Q
since become insolvent.
R R
S 22. In relation to criminal records, there was only one previous S
conviction for trafficking which was over 10 years old. Mr Nunag also has
T T
U U
V V
-7-
A A
B B
5 previous convictions for possession of dangerous drug and two previous
C convictions for possession of Part 1 Poison. C
D D
23. The most serious charge is Charge 1 which must be dealt with
E by an immediate term of imprisonment. Charge 4 must be dealt with by a E
financial penalty. The remaining charges may have been dealt with by a
F F
financial penalty, but perhaps now, may or may not be wrong in principle,
G if Mr Nunag is to be sentenced to a term of imprisonment in relation to G
Charge 1.
H H
I 24. In relation to Charge 1, the ICE was imported into Hong Kong I
for Mr Nunag’s own consumption. In this connection, his urine was found
J J
to react positively to Amphetamine, indicating he had consumed ICE prior
K to arrest. K
L L
25. Mr Boyton referred to the six-step approach set out in HKSAR
M v Herry Jane Yusuph [2021] 1 HKLRD 290 as modified by HKSAR v Lee M
Ming Ho [2024] 1 HKLRD 1186.
N N
O 26. The trafficking in 2.47 grammes of ICE falls into the lowest O
tariff band, namely for up to 10 grammes of narcotic: 3 to 7 years’
P P
imprisonment: HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138;
Q Attorney General v Ching Kwok Hung [1991] 2 HKLR 125; HKSAR v Tam Q
Yi Chun [2014] 3 HKLRD 691.
R R
S 27. Adopting a mathematical approach, the starting point for 2.47 S
grammes of ICE would be around 3 years and 11 months’ imprisonment.
T T
U U
V V
-8-
A A
B B
28. Since the drug was imported for Mr Nunag’s own use, there
C is no need to adjust the mathematical starting point upwards on C
consideration of Mr Nunag’s role and culpability. In this connection, it
D D
was submitted that importation for self-use does not “fuel the local drug
E market” (see Lee Ming Ho at 1218 where a passage in Zervos JA’s E
judgment of HKSAR v Fong Yau Heung [2022] 2 HKLRD 99 at para 23
F F
was quoted with approval).
G G
29. Mr Nunag asserts in relation to Charge 1 that the entire
H H
amount of the dangerous drug was for his self-consumption. For this, he
I should be entitled to a 25% sentencing discount (R v Chan Mung Lung I
[1992] 2 HKCLR 127, 130; HKSAR v Mak Wai Ming [2012] 2 HKLRD
J J
418; HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121).
K K
30. For Charges 2 to 3, they would normally be dealt with by way
L L
of a fine, particularly because of the small quantities involved. However,
M it may or may not be wrong in principle to impose a lengthy term of M
imprisonment and a financial penalty in the same case. The court may
N N
consider imposing short terms of imprisonment instead and order they be
O served concurrently with the sentence on Charge 1. O
P P
31. Mr Nunag pleaded guilty in good time and should be afforded
Q a 1/3 discount. Q
R R
32. Mr Boyton reminded the court of the totality principle.
S S
33. Mr Boyton submitted two mitigation letters written in English
T T
respectively by Mr Nunag himself and one of his sisters. The contents
U U
V V
-9-
A A
B B
generally are that Mr Nunag is really sorry for what he has done. The letter
C writers asked the court for leniency and a last chance be given. C
D D
34. Upon enquiry, Mr Boyton told the court that there is money
E to the tune of $3,000 odd in the prisoner’s property available for payment E
of a fine.
F F
G Sentence G
H H
35. Prosecution confirmed that they would not pursue an
I additional sentence under section 46(2) of the Dutiable Commodities I
Ordinance, Cap 109.
J J
K 36. In relation to Charge 1, prosecution did not dispute that the K
dangerous drug was entirely for Mr Nunag’s own consumption.
L L
M 37. I am of the view that importation of drug for the purpose of M
self-consumption does not trigger the “international element” sentencing
N N
consideration.
O O
38. I will adhere to the six-step approach set out in HKSAR v
P P
Herry Jane Yusuph [2021] 1 HKLRD 290.
Q Q
39. For Charge 1, I adopt an initial starting point of 4 years (by
R R
rounding up the decimal places in the arithmetical starting point). For the
S fact that the drug was entirely for Mr Nunag’s self-consumption, I reduce S
that starting point by 25% to reach an intermediate starting point of 3 years.
T T
Mr Nunag is a repeated offender of dangerous drug related offences
U U
V V
- 10 -
A A
B B
(including one for trafficking); for the reason of increasing the deterrence
C on him, I will increase the intermediate starting point by 3 months to reach C
the final starting point of 3 years and 3 months’ imprisonment.
D D
E 40. For Charge 2, the maximum penalty is a fine of $100,000 and E
2 years’ imprisonment. Mr Nunag already has two previous convictions
F F
for the same offence with one as recent as 2021. In order to increase the
G deterrence on him, I will impose an imprisonment sentence. I adopt a G
starting point of 15 days’ imprisonment.
H H
I 41. For Charge 3, the maximum penalty is a fine of $1 million and I
imprisonment for 2 years. I could impose a fine but decided against it
J J
because Mr Nunag is going to serve a rather substantial term of
K imprisonment already. In the premises, I will simply impose a short term K
of imprisonment. I adopt a starting point of 12 days’ imprisonment.
L L
M 42. For Charge 4, the maximum penalty is a fine of $2,000. There M
is no provision for an imprisonment penalty. Taking into account the plea
N N
of guilty, and given Mr Nunag is going to serve a term of imprisonment for
O the other charges, I will simply impose a fine of $200 on him. O
P P
43. Mr Nunag pleaded guilty in good time earning for himself the
Q customary 1/3 sentencing discount on prison terms. I can see no other Q
mitigating factors of substance to warrant another sentence reduction.
R R
S 44. Although the offences subject of Charges 1 to 3 took place at S
the same place and at the same time, they were separate and distinct
T T
offences. One was not concomitant to the others. In principle, they ought
U U
V V
- 11 -
A A
B B
to attract consecutive sentences. However, I will bear in mind totality
C when considering the final aggregate sentence for Mr Nunag. C
D D
(Mr Nunag, please stand)
E E
45. For Charge 1, the sentence is 2 years and 2 months’
F F
imprisonment.
G G
46. For Charge 2, the sentence is 10 days’ imprisonment.
H H
I 47. For Charge 3, the sentence is 8 days’ imprisonment. I
J J
48. For Charge 4, the sentence is a fine of $200 to be paid from
K prisoner’s property within 7 days. K
L L
49. I order that 3 days of the sentence on Charge 2, and 2 days of
M the sentence on Charge 3, are each to run consecutively to the sentence on M
Charge 1, making a final sentence for Mr Nunag of 2 years 2 months and
N N
5 days’ imprisonment.
O O
50. I am satisfied that final prison term is fair, just and balanced
P P
having regard to the circumstances of the offences and the offender.
Q Q
R R
S ( Isaac Tam ) S
District Judge
T T
U U
V V
A A
B B
DCCC 1306/2024
C [2025] HKDC 1361 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1306 OF 2024
F F
G -------------------------------------------- G
HKSAR
H H
v
I NUNAG DOMINGO MALLARI I
--------------------------------------------
J J
K Before: His Honour Judge Tam K
Date: 7 August 2025
L L
Present: Mr Tan Xiao Yi, Ivan, Public Prosecutor, for HKSAR
M Mr Boyton David Rex, instructed by Kevin L H Kwong & M
Co, assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1] Trafficking in a dangerous drug（販運危險藥物）
O O
[2] Possession of poison included in Part 1 of the Poisons
P
List（管有毒藥表第 1 部所列毒藥） P
[3] Importing goods to which the Dutiable Commodities
Q Q
Ordinance applied（進口《應課稅品條例》適用的貨品）
R [4] Failing to declare to a member of the Customs and R
Excise Service（沒有向香港海關人員申報）
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. Mr Nunag pleaded guilty before me to four charges on a E
Charge Sheet as follows.
F F
G 2. Charge 1 is Trafficking in a dangerous drug, contrary to G
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
H H
Particulars are that he, on 17 May 2024, at Customs Arrival Hall, Hong
I Kong – Macau Ferry Terminal, Sheung Wan, in Hong Kong, unlawfully I
trafficked in a dangerous drug, namely 2.48 grammes of a crystalline solid
J J
containing 2.47 grammes of methamphetamine hydrochloride.
K K
3. Charge 2 is Possession of poison included in Part 1 of the
L L
Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and
M Poisons Ordinance, Cap 138. Particulars are that he, on the same date, at M
the same place, in Hong Kong, had in his possession a poison included in
N N
Part 1 of the Poisons List, namely one tablet containing sildenafil,
O otherwise than in accordance with the provisions of the Pharmacy and O
Poisons Ordinance, Chapter 138.
P P
Q 4. Charge 3 is Importing goods to which the Dutiable Q
Commodities Ordinance applied, contrary to sections 17(1) and 46(3) of
R R
the Dutiable Commodities Ordinance, Cap 109. Particulars are that he, on
S the same date, at the same place, in Hong Kong, imported goods to which S
the Dutiable Commodities Ordinance, Cap 109, applied, namely one bottle
T T
of whisky and 21 pieces of dutiable cigarettes, otherwise than in
U U
V V
-3-
A A
B B
accordance with the provision of paragraph (a) or (b) of section 17(1) of
C the Dutiable Commodities Ordinance, Cap 109. C
D D
5. Charge 4 is Failing to declare to a member of the Customs and
E Excise Service, contrary to sections 34A(1) and (3) and 46(3) of the E
Dutiable Commodities Ordinance, Cap 109. Particulars are that he, on the
F F
same date, at the same place, in Hong Kong, being a person entering Hong
G Kong at an entry point, failed to declare to a member of the Customs and G
Excise Service the quantity of dutiable goods, namely one bottle of whisky
H H
and 21 pieces of dutiable cigarettes, contained in his luggage which were
I in excess of the quantities that the Commissioner of Customs and Excise I
had published in the Gazette.
J J
K Facts admitted by Mr Nunag K
L L
6. On 17 May 2024, at about 0013 hours, Mr Nunag entered
M Hong Kong via the Hong Kong – Macau Ferry Terminal (“HMFT”). M
N N
7. When Mr Nunag was clearing customs at HMFT, a Customs
O officer intercepted him and escorted him to a nearby counter for conducting O
a baggage inspection.
P P
Q 8. Upon inspection, Customs found a bottle of Scotch whisky (1 Q
litre, 40% alcohol concentration) (E1) and 40 cigarettes (21 of which were
R R
seized as E2) in Mr Nunag’s luggage. He was immediately cautioned for
S not making a customs declaration in relation there to. Under caution, Mr S
Nunag stated that E1 and E2 were possessed for purposes of self-
T T
consumption.
U U
V V
-4-
A A
B B
C 9. Upon body search, it was discovered that there was a grey C
coloured drawstring bag (“the Bag”) placed within Mr Nunag’s
D D
underpants. Upon being asked about the contents of the Bag, Mr Nunag
E threw the Bag into his mouth. Mr Nunag was restrained physically to E
prevent him from swallowing the Bag.
F F
G 10. Mr Nunag spitted out the Bag which was found to contain: G
H H
(a) Four cellotaped plastic bags containing a total of 2.48
I grammes of a crystalline solid containing 2.47 I
grammes of methamphetamine hydrochloride (E3); and
J J
K (b) One plastic bag containing one tablet containing K
sildenafil, a listed Part 1 Poison.
L L
M 11. Mr Nunag was arrested on 17 May 2024. Under caution, he M
admitted that E3 pertained to a type of dangerous drug “ICE”; and E4
N N
pertained to a tablet of Viagra for his own use.
O O
12. A subsequent cautioned VRI was conducted with Mr Nunag
P P
in which he stated:
Q Q
(a) E1 and E2 were purchased at a Duty-free Shop in
R R
Macau;
S S
(b) He had not obtained any licenses or certificates to
T T
import E1 and E2;
U U
V V
-5-
A A
B B
C (c) He did not make any declaration for E1 and E2 to any C
customs officer;
D D
E (d) He bought E3 from a Pakistani male in Macau for a E
price of HK$400; and
F F
G (e) He was a habitual user of drugs. G
H H
13. The average market value of E3 was about $1,366 at the
I material time. I
J J
14. Mr Nunag now admits that at the material time, he unlawfully
K trafficked in E3, by importing the same into Hong Kong. K
L L
15. Mr Nunag now admits that at the material time, he imported
M into Hong Kong one bottle of whisky and 21 pieces of dutiable cigarettes M
which were goods to which the Dutiable Commodities Ordinance applied;
N N
he admits that he failed to declare these dutiable goods to a member of the
O Customs and Excise Service at the material time. O
P P
Criminal record
Q Q
16. Mr Nunag has 9 previous convictions of which 5 were for
R R
possession of dangerous drug, one was for trafficking in dangerous drug
S and two were for possession of Part 1 Poison. S
T T
U U
V V
-6-
A A
B B
Antecedents
C C
17. Mr Nunag is aged 58 (57 at the time of the offences). Mr
D D
Nunag is divorced. At the time of arrest, he was working as a bar manager
E and was living in private housing in Sai Ying Pun. E
F F
Mitigation
G G
18. Mr David Boyton of counsel assigned by the Director of Legal
H H
Aid mitigated on behalf of Mr Nunag. The following is a summary of the
I mitigation submissions. I
J J
19. Mr Nunag was born and educated in the Philippines (up to
K Grade 9). He has seven siblings; he is the third oldest. Two sisters and a K
brother have settled and taken up permanent residence in Hong Kong.
L L
M 20. Mr Nunag came to work and settled in Hong Kong in 1991. M
He married around 2003/2004 and divorced in 2016. He has a permanent
N N
HKID card. He has three daughters from that marriage aged 24, 12, and
O 12 and they all live in USA. Mr Nunag’s mother (in her 80s) lives in the O
Philippines.
P P
Q 21. The bar at which Mr Nunag has worked as a bar manager has Q
since become insolvent.
R R
S 22. In relation to criminal records, there was only one previous S
conviction for trafficking which was over 10 years old. Mr Nunag also has
T T
U U
V V
-7-
A A
B B
5 previous convictions for possession of dangerous drug and two previous
C convictions for possession of Part 1 Poison. C
D D
23. The most serious charge is Charge 1 which must be dealt with
E by an immediate term of imprisonment. Charge 4 must be dealt with by a E
financial penalty. The remaining charges may have been dealt with by a
F F
financial penalty, but perhaps now, may or may not be wrong in principle,
G if Mr Nunag is to be sentenced to a term of imprisonment in relation to G
Charge 1.
H H
I 24. In relation to Charge 1, the ICE was imported into Hong Kong I
for Mr Nunag’s own consumption. In this connection, his urine was found
J J
to react positively to Amphetamine, indicating he had consumed ICE prior
K to arrest. K
L L
25. Mr Boyton referred to the six-step approach set out in HKSAR
M v Herry Jane Yusuph [2021] 1 HKLRD 290 as modified by HKSAR v Lee M
Ming Ho [2024] 1 HKLRD 1186.
N N
O 26. The trafficking in 2.47 grammes of ICE falls into the lowest O
tariff band, namely for up to 10 grammes of narcotic: 3 to 7 years’
P P
imprisonment: HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138;
Q Attorney General v Ching Kwok Hung [1991] 2 HKLR 125; HKSAR v Tam Q
Yi Chun [2014] 3 HKLRD 691.
R R
S 27. Adopting a mathematical approach, the starting point for 2.47 S
grammes of ICE would be around 3 years and 11 months’ imprisonment.
T T
U U
V V
-8-
A A
B B
28. Since the drug was imported for Mr Nunag’s own use, there
C is no need to adjust the mathematical starting point upwards on C
consideration of Mr Nunag’s role and culpability. In this connection, it
D D
was submitted that importation for self-use does not “fuel the local drug
E market” (see Lee Ming Ho at 1218 where a passage in Zervos JA’s E
judgment of HKSAR v Fong Yau Heung [2022] 2 HKLRD 99 at para 23
F F
was quoted with approval).
G G
29. Mr Nunag asserts in relation to Charge 1 that the entire
H H
amount of the dangerous drug was for his self-consumption. For this, he
I should be entitled to a 25% sentencing discount (R v Chan Mung Lung I
[1992] 2 HKCLR 127, 130; HKSAR v Mak Wai Ming [2012] 2 HKLRD
J J
418; HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121).
K K
30. For Charges 2 to 3, they would normally be dealt with by way
L L
of a fine, particularly because of the small quantities involved. However,
M it may or may not be wrong in principle to impose a lengthy term of M
imprisonment and a financial penalty in the same case. The court may
N N
consider imposing short terms of imprisonment instead and order they be
O served concurrently with the sentence on Charge 1. O
P P
31. Mr Nunag pleaded guilty in good time and should be afforded
Q a 1/3 discount. Q
R R
32. Mr Boyton reminded the court of the totality principle.
S S
33. Mr Boyton submitted two mitigation letters written in English
T T
respectively by Mr Nunag himself and one of his sisters. The contents
U U
V V
-9-
A A
B B
generally are that Mr Nunag is really sorry for what he has done. The letter
C writers asked the court for leniency and a last chance be given. C
D D
34. Upon enquiry, Mr Boyton told the court that there is money
E to the tune of $3,000 odd in the prisoner’s property available for payment E
of a fine.
F F
G Sentence G
H H
35. Prosecution confirmed that they would not pursue an
I additional sentence under section 46(2) of the Dutiable Commodities I
Ordinance, Cap 109.
J J
K 36. In relation to Charge 1, prosecution did not dispute that the K
dangerous drug was entirely for Mr Nunag’s own consumption.
L L
M 37. I am of the view that importation of drug for the purpose of M
self-consumption does not trigger the “international element” sentencing
N N
consideration.
O O
38. I will adhere to the six-step approach set out in HKSAR v
P P
Herry Jane Yusuph [2021] 1 HKLRD 290.
Q Q
39. For Charge 1, I adopt an initial starting point of 4 years (by
R R
rounding up the decimal places in the arithmetical starting point). For the
S fact that the drug was entirely for Mr Nunag’s self-consumption, I reduce S
that starting point by 25% to reach an intermediate starting point of 3 years.
T T
Mr Nunag is a repeated offender of dangerous drug related offences
U U
V V
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A A
B B
(including one for trafficking); for the reason of increasing the deterrence
C on him, I will increase the intermediate starting point by 3 months to reach C
the final starting point of 3 years and 3 months’ imprisonment.
D D
E 40. For Charge 2, the maximum penalty is a fine of $100,000 and E
2 years’ imprisonment. Mr Nunag already has two previous convictions
F F
for the same offence with one as recent as 2021. In order to increase the
G deterrence on him, I will impose an imprisonment sentence. I adopt a G
starting point of 15 days’ imprisonment.
H H
I 41. For Charge 3, the maximum penalty is a fine of $1 million and I
imprisonment for 2 years. I could impose a fine but decided against it
J J
because Mr Nunag is going to serve a rather substantial term of
K imprisonment already. In the premises, I will simply impose a short term K
of imprisonment. I adopt a starting point of 12 days’ imprisonment.
L L
M 42. For Charge 4, the maximum penalty is a fine of $2,000. There M
is no provision for an imprisonment penalty. Taking into account the plea
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of guilty, and given Mr Nunag is going to serve a term of imprisonment for
O the other charges, I will simply impose a fine of $200 on him. O
P P
43. Mr Nunag pleaded guilty in good time earning for himself the
Q customary 1/3 sentencing discount on prison terms. I can see no other Q
mitigating factors of substance to warrant another sentence reduction.
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S 44. Although the offences subject of Charges 1 to 3 took place at S
the same place and at the same time, they were separate and distinct
T T
offences. One was not concomitant to the others. In principle, they ought
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V V
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A A
B B
to attract consecutive sentences. However, I will bear in mind totality
C when considering the final aggregate sentence for Mr Nunag. C
D D
(Mr Nunag, please stand)
E E
45. For Charge 1, the sentence is 2 years and 2 months’
F F
imprisonment.
G G
46. For Charge 2, the sentence is 10 days’ imprisonment.
H H
I 47. For Charge 3, the sentence is 8 days’ imprisonment. I
J J
48. For Charge 4, the sentence is a fine of $200 to be paid from
K prisoner’s property within 7 days. K
L L
49. I order that 3 days of the sentence on Charge 2, and 2 days of
M the sentence on Charge 3, are each to run consecutively to the sentence on M
Charge 1, making a final sentence for Mr Nunag of 2 years 2 months and
N N
5 days’ imprisonment.
O O
50. I am satisfied that final prison term is fair, just and balanced
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having regard to the circumstances of the offences and the offender.
Q Q
R R
S ( Isaac Tam ) S
District Judge
T T
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V V
DCCC1306/2024 HKSAR v. NUNAG DOMINGO MALLARI - LawHero