HKSAR v. Rodriguez Taborda Jhonier

DCCC 812/2017

[2018] HKDC 345

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 812 OF 2017

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Reasons for Sentence

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1.Defendant pleaded guilty to the charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of Dangerous Drugs Ordinance, Chapter 134.

2.Around 1.15 am on 15 June 2017, police saw the defendant sitting on a bench in the sitting area of Wing Ning Street, Wanchai and looking around furtively.  When the defendant saw the police, he immediately put his hands on a backpack by his side.  Upon interception, defendant took out a Colombia passport, and when searching the defendant’s backpack, police found a red “lai see” packet, inside which was a resealable transparent plastic bag (7 x 13 cm) containing a powdery substance of dangerous drugs (E1).  Police further found from the defendant’s right trousers pocket a wallet, inside which were 3 resealable transparent plastic bags (2 x 3 cm).  Each was wrapped in a piece of black paper, and each bag contained a powdery substance of dangerous drugs (E2 - E4). 

3.According to the government chemist, E1 to E4 contained a total of 41.72 grammes of a solid containing 22.95 grammes of cocaine, the average retail price of cocaine was HK$847 per gramme.  Thus, the retail price of the cocaine seized was around 35,336.84.  From the defendant, he was also found with him about $3,000-odd.

4.In a video-recorded interview, under caution and through an interpreter, defendant claimed he had arrived in Hong Kong from Colombia by himself about 15 days prior to his arrest.  He had about 3 to 4 thousand euros with him.  He admitted that E1 to E4 were cocaine and they were his.  He had bought them altogether 3 days ago, but he forgot for how much he had bought them for.  He said when he bought them, they were packed in the same way as when the police found them.  He had kept E1 inside his backpack and E2 to E4 inside his wallet all along.  He had bought those drugs for his own use and for making some money.  He claimed that he had consumed the cocaine in E1 once a day, but he forgot where he had done so.

5.Defendant now admits in possession of E1 to E4 for the purpose of unlawful trafficking.

6.Defendant aged 32, clear record, a national of Colombia, he came to Hong Kong about a month prior to the commission of the offence as a visitor.  Ms Wong submitted that the defendant had been working as a textile technician earning about US500 per month, and he had a son about 5 years old to support.  About 2017, defendant decided to import textile to mainland and would pay a visit there. So he had resigned his job, while waiting for the unpaid allowance, he remained in Hong Kong and met some friends who had solicited him to deal with the drugs.  Out of greediness and financial pressure, he agreed but did not succeed in selling any drugs before the arrest.

7.Defendant is now very remorseful for what he has done.  And he is a drug addict.  He would consume a small part of the drugs found from him.  Defendant pleaded guilty at the earliest opportunity and hopes for a lenient sentence for him to go back to take care of his son as soon as possible.

8.Trafficking in a dangerous drug is a very serious offence.  The Court of Appeal in AG v Pedro Nel Rojas [1994] 1 HKC 342 adopted the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, stating that for trafficking in cocaine of 10 to 50 grammes, 5 to 8 years’ imprisonment shall be imposed.

9.In the present case, there were altogether 22.95 grammes of cocaine in 4 plastic packets.  The facts were serious.  According to the above case, starting point of about 5 years 9 months or more of imprisonment shall be imposed.  However, taking into account the guilty plea of the defendant, thus saving court’s costs and time and that a small part of the drugs found from him would be consumed by him.  After consideration, it is appropriate to take the starting point of 5 years and 3 months.  Upon his guilty plea, that be further reduced to 42 months’ imprisonment.  

10.So for the present offence, defendant is sentenced to 42 months’ imprisonment.