HKSAR v. Herrera Garcia Jhon Jairo and Another

HCCC 198/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 198 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Both defendants have pleaded guilty to one count of trafficking in a dangerous drug, namely 3,263.20 grammes of a solid and 519.20 of a powder containing 2,559.80 grammes of cocaine.

The facts in this case reveal that on 14 November 2014, Narcotics Bureau officers observed the 1st defendant leaving a building in Hysan Avenue, Wan Chai. He was intercepted, and with a key found on him, the officers took him to Room 2, Flat B, 14th floor of the building and used the key to try and gain entry into the premises. Initial entry was resisted, but after a short struggle the officers managed to push inside the premises, and inside those premises was the 2nd defendant who was alone inside at the time.

The Narcotics Bureau officers then declared arrest of both the 1st and 2nd defendants whilst they were inside the premises, for the offence of trafficking in a dangerous drug.

Under caution, the 1st defendant made no response and the 2nd defendant said that he was just helping his friend and that the drugs were not his.

The premises were searched and there was a single combined bathroom and toilet, and the premises were divided into two bed spaces. In the premises were found not only the drugs which are the subject matter of this charge, but were also found paraphernalia such as electronic scales and resealable plastic bags, and there was cutting tools also found and, in particular, was an electric saw with a blade containing traces of cocaine.

The exhibits were seized and, subsequently, when the 1st defendant was interviewed in a video-recorded interview with the assistance of a Spanish Interpreter, the 1st defendant said he came to Hong Kong together with the 2nd defendant. He claimed that he could not recall how many times he had visited those premises, although he did agree that his clothing was found inside the premises. He also admitted that a blue coloured toothbrush found inside the premises belonged to him.

The 2nd defendant was also interviewed with the assistance of a Spanish Interpreter, but he, apart from confirming his identity, declined to answer any questions.

Immigration records reveal that both defendants arrived in Hong Kong on 13 October 2014 which was about a month prior to their arrest.

The exhibits were sent to the government laboratory for analysis, and also the 1st and 2nd defendants’ fingernail cuttings.

The 2nd defendant’s DNA was found on a plastic water bottle in the premises whilst the 1st defendant’s DNA was found on the toothbrush in the bathroom of the premises. Traces of cocaine were found on the fingernail cuttings of both defendants.

The total value of the cocaine found in November 2014 is sold at the street level to drug users would amount to over HK$3.5 million.

In mitigation, as both defence counsel recognised, the really only mitigating factor would be their plea of guilty.

The 1st defendant had indicated that he would plead guilty since the pre-trial review, and the 2nd defendant had only indicated that he was going to plead a few days ago. In explanation, Mr Adams very fairly put it that the defence had problems obtaining some of the evidence which the prosecution was going to rely on, and it was not through any fault of Mr Richmond or the Narcotics Bureau, but it transpired that it was due to the fact that the Government Chemist had refused to analyse the fingernail cuttings of the 2nd defendant because they think that because the 2nd defendant was found in the premises it was unnecessary to analyse his fingernail cutting.

It was through the insistence of Mr Richmond and the officers of the Department of Justice that the analysis of the 2nd defendant’s fingernails were subsequently achieved. I have asked Mr Richmond to convey this court’s concern to the Department of Justice that this should not happen again because not only is it a waste of judicial time, it is also a waste of public funds when this sort of thing happens.

At the present moment, in considering the plea, I would give both defendants the full one-third discount.

As has been pointed out by both counsel following the guidelines laid down in Abdallah for trafficking in between 1,200 to 4,000 grammes of cocaine would merit a sentence after trial of 23 to 26 years’ imprisonment.

For the present quantity, I agree with both counsel that it would merit a starting point of 24 years, and because I would deduct one-third off for their plea, the sentence will, therefore, be 16 years’ imprisonment.

So both defendants are sentenced to 16 years’ imprisonment.