HKSAR v. Zalez Brines Juan Felipe

DCCC 952/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 952 OF 2016

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to trafficking in a dangerous drug. 

2.On 4 August 2016 the police saw the Defendant acting furtively at the staircase of The Centrium, No. 60 Wyndham Street, Central.  They intercepted him at the 1^st Floor lift lobby.  He had 2 packets of cocaine in his white bag and 15 packets of cocaine in a red lai see packet inside his underpants.  It was confirmed to be 9.96 grammes of a powder containing 7.53 grammes of cocaine. 

3.He was arrested.  He had HK$2,638 cash on him and small amounts of foreign currencies. 

4.In a cautioned interview assisted by a Spanish interpreter, he stated that he was going to sell the drugs seized and he would take cocaine once every eight days. 

5.He had no fixed abode.  Hence, no house search was conducted.

6.The estimated street value of the drugs seized was around $11,932. 

Mitigation

7.The Defendant is 27 years of age, a Columbian citizen.  He came to Hong Kong in 2015 but then overstayed, resulting in a conviction and sentence for breach of condition of stay.  His sentence of 2 weeks suspended for 3 years is still operative at the present juncture.  On the one hand, he has applied for torture claimant status in June 2016 due to events affecting him in Columbia.  On the other hand, he wants to reunite with his wife and family in Columbia. 

8.Mr. Leung submits that, as reflected in his first response to the police when confronted, part of the drugs, a small part of it, was for self-consumption. That shall reduce his sentence.   

9.However, it cannot be disputed that as a torture claimant committing a serious crime affecting the order and security of Hong Kong, the Defendant faces an enhancement of sentence according to HKSAR v Sandagdorj Altankhuyag [2014] 1 HKC 206. 

Sentencing considerations

10.Traffickers of up to 10 grammes of cocaine shall face 2 – 5 years’ imprisonment (Attorney General v Rojas [1994] 1 HKC 342; R v Lau Tak Ming [1990] 2 HKLR 370). 

11.The Court of Appeal in HKSAR v Chow Chun-sang [2012] 2 HKLRD 1116 indicates that a reduction of 10% to 25% from the basic starting point can be given where, if substantiated, part of the drugs seized was for self-consumption. 

Sentencing this Defendant

12.I take a basic starting point of 4 years.  I accept that a small portion of the drugs was for self-consumption.  For this, 6 months is taken off the basic starting point.  The starting point is 3 years 6 months.  After the one-third discount for his plea of guilty, the sentence is 2 years 4 months.  I factor in 4 months by way of enhancement due to his torture claimant status.  The eventual sentence is 2 years 8 months.

13.His suspended sentence is activated in full but I order that to run concurrently with his present sentence.