HKSAR v. Garcia Sanchez Jaime Alberto

HCCC 128/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 128 OF 2016

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

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COURT: On 11 March 2016, the defendant pleaded guilty before Mr Jason Power, Permanent Magistrate, to one charge of trafficking in dangerous drugs. A summary of facts prepared by the prosecutor upon which that charge was based was read to him and admitted by him. He was on that day committed to this court for sentence.

Today he has confirmed that plea of guilty and that summary of facts. The summary of facts recounts how on 29 April 2015, police officers observed a man entering premises on the 3rd floor of a Chinese tenement building at 54 Po Hing Fong, in Central. These premises, it transpired, were divided into four individual rooms. The man who entered those premises was the defendant. Shortly after he had been first observed, he exited Room 302 and was detained by the waiting police officers.

He was searched, and in one of his pockets was found a packet which they suspected to contain dangerous drugs. In another pocket they found a bunch of four keys and these keys were found to open the main gate, front door at Room 302.

That room was then searched and several plastic bags and a box containing what was suspected to be dangerous drugs was found, together with two electronic scales.

The suspected dangerous drugs were subsequently analysed and determined to be 3,818.21 grammes of a powder and solid containing 2,105.24 grammes of cocaine.

That cocaine was estimated to have a retail value of $4,375,000 in Hong Kong.

At the time of his arrest the defendant made no comment or admissions, but now admits that he was trafficking in that quantity of cocaine.

An antecedents statement before me which has been agreed indicates that he is a Colombian national. He is 51 years of age. He has a tertiary education, having graduated from the University of Colombia with a degree in Architecture. He is a married man with two children.

Today, before me, he is represented by Mr Lam who has told me something of his background. Likewise, he was told me something of the circumstances under which he became involved in the trafficking in these drugs. The account provided by Mr Lam is to the effect that whilst the defendant had previously been a successful practising architect in Colombia, due to the downfall in the economic environment there he found himself in significant debt. In an attempt to extricate himself from that debt, he came to Hong Kong in the hope of becoming involved in trading.

In the course of that time, he came to know another Colombian male who, having become aware of his financial circumstances, invited him to become involved in the trafficking in drugs. It is, indeed, unfortunate that he has become so involved. Apart from the fact that he will be incarcerated for a considerable period of time, this must also have a significant effect on his family both now and for the future.

One of the matters advanced in mitigation on his behalf by Mr Lam is, in effect, that I should adjust the sentence to be imposed by reason of the fact that he is a foreign national who will be incarcerated in Hong Kong.

I have considered the relevant authorities in respect of this and I am satisfied, in the circumstances, that this is not a matter that should significantly or materially adjust the quantum of the sentence that I should impose.

Turning now to the appropriate starting point for sentence and then the appropriate discount to be provided by reason of his plea of guilty and any other relevant matters, I bear in mind that there are three relevant authorities which govern the starting point and approach to sentence. The first of those is R v Lau Tak Ming [1990] 2 HKLR 370; the second is AG v Pedro Nel Rojas [1994] 2 HKCLR 69; and the third is HKSAR v Abdallah [2009] 1 HKLRD 437.

In Abdallah, the Court of Appeal has provided guidance for sentences for those defendants convicted of trafficking in dangerous drugs where the quantity of the drugs was in excess of the then existing guidelines for sentence. Whilst Abdallah dealt with the drug heroin, it has been long accepted that those observations and recommendations apply with equal force to cocaine.

Those guidelines provide a starting point for trafficking in the quantity of cocaine between 1,200 grammes and 4,000 grammes before any enhancement for any aggravating factors as being in the range of 23 to 26 years. Applying those guidelines to the quantum of drugs in the present case, in my opinion the appropriate starting point for sentence before trial and before any enhancement is one of 24 years.

There is nothing in any of the material before me to indicate that the drugs were imported by this defendant into Hong Kong and there are no other apparent aggravating factors which require that starting point to be enhanced beyond that period.

Insofar as the matters advanced in mitigation are concerned, none of them would justify a discount from the starting point of in excess of one-third. Whilst I accept that he is a foreign national, nevertheless, I do not believe in the circumstances of this case, and in particular given the substantial quantity of drugs concerned, that any additional discount should be provided.

In those circumstances, giving full credit for the plea of guilty, the appropriate sentence is one of 16 years’ imprisonment, and that is the sentence which I will impose.