HKSAR v. Ramirez Atehortua Jonathan Andres

DCCC 981/2017

[2018] HKDC 562

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 981 OF 2017

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REASONS FOR SENTENCE

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1.Defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 on his own plea.

2.According to the agreed Summary of Facts, defendant was seen acting suspiciously outside No 29 Queen’s Road Central, Hong Kong at 10.25 pm on 10 August 2017.  Upon stop and search, the following were found on the defendant, namely:-

(a) one transparent plastic bag containing 11 smaller sealable plastic bags later certified by government chemist to contain total of 7.92 grammes of a powder containing 6.36 grammes of cocaine;

(b) cash of HK$2,206 and US$1 and Colombian Peso of $15,000;

(c) one mobile phone; and

(d) three keys.

3.Later, during house search of defendant’s residence at Nathan Road, 379 transparent sealable plastic bags, one electronic scale, cash of HK$52,700, one watch and one pendant were found.

4.Defendant admitted under caution that:-

(a) The substance found on him upon body search is cocaine.

(b) He sold the cocaine to foreigners in Lan Kwai Fong area at the price of HK$1,000 per packet.

(c) He resides at the Nathan Road address searched by the police.

(d) He used the transparent sealable plastic bags therein to pack cocaine.

(e) He is a non-refoulement claimant (Form 8 holder) but his application for International Social Service subsidy was refused.

(f) He refused to disclose his financial means and the source of his cash of HK$52,700.

(g) He refused to disclose the use of the electronic scale.

5.It is also agreed that the street value of the dangerous drugs seized is HK$9,000.

6.The defendant had one previous, non-similar conviction record.  The conviction related to breach of condition of stay. 

7.It was advanced in mitigation on his behalf that he was aged 24, that he came from Colombia and had received education up to Form 3 level in secondary school, that he had also attended for three years a five-year course on cookery, that he is the only child of the family, that his father is an electrician and his mother is a housewife. 

8.He admitted to be a cocaine user. He explained that the money found at his home is money sent by his mother to him as medical expenses.  He admitted, however, that he had never received medical treatment in Hong Kong before his arrest and that he just bought drugs for himself regarding his kidney and bladder problem. 

9.Initially, it was mitigated on his behalf that 50 per cent of the drugs seized from him was for his own consumption but as this court has expressly mentioned that the court does not accept this contention on face value and would conduct a Newton hearing towards clarification of this issue, counsel for the defendant withdrew the said contention. 

10.Defendant at the time of offence was a non-refoulement claimant but he had withdrawn the claim three months prior to this date.  Defendant said he is deeply remorseful and would not repeat committing this offence. 

11.Whilst I accept that defendant is a cocaine user himself, it was not said how much of the 11 packets was actually for his own use.  Coupled with the fact that he resides in Nathan Road and was found in late evening in Central with the drugs in question on him packed in the 11 individual plastic bags as well as the existence of the electronic scale at his home and the few hundred empty plastic bags in his home.  The reason for the use of the electronic scale has not been explained for.

12.In the circumstances, I do not accept that the drugs or a substantial part of the drugs in question was for his own consumption.

13.The cited case of HKSAR v Chow Chun Sang , CACC135/2011 is distinguished as that case dealt with a case where the substantial portion of the drugs in question was for defendant’s own consumption and which has been accepted by the court.  Accordingly, no sentencing discount would be afforded to the defendant.

14.In the case here, the narcotics involved is 6.36 grammes of cocaine.  It is well-established that for trafficking in dangerous drugs offence, personal and family background or reasons for commission of offence unless in exceptional circumstances do not serve as valid mitigating factor.

15.For trafficking of cocaine following the authority of Pedro Nel Rojas [1994] 1 HKC 342, in adopting the guideline in Lau Tak Ming case, CACC 230/1989, using a mathematical approach, it is laid down in that case that the appropriate starting point for trafficking up to 10 grammes of cocaine is 2 to 5 years.  And adopting a mathematical approach, the starting point for sentencing here is 3 years and 10 months. 

16.The defendant was a non-refoulement claimant at the time of offence.  This is an aggravating factor in sentencing.  In the case of HKSAR v Shah Syed Arif CACC 298/2015, the Court of Appeal confirmed in paragraph 30 onwards of the judgment:-

“...... the obvious proposition that those who are privileged to be permitted to remain in Hong Kong and to be at liberty whilst their various claims for asylum are being determined by the authorities, are required to behave themselves and abided by the law of this jurisdiction. If they abuse that licence by deliberately engaging in serious criminal activities aimed at the very community which has granted them that privilege, and if the crime in which they engage has the effect of tarnishing Hong Kong’s reputation for order and security, which are the very qualities they are seeking to secure for themselves, then that is a factor capable of aggravating the seriousness of their crime. In HKSAR v Sandagdorj Altankhuyag case, as the judge was fully aware, we drew a distinction between crimes committed by claimants, which do not affect the community at large or have any significant impact on Hong Kong’s reputation, and those which do.”

In paragraph 32 of the judgement:-

“It seems to us undeniable that the trafficking of cocaine by people who are not normally entitled to be in Hong Kong but are licensed to remain at liberty in the community while their various claims for asylum are being processed, not only affects the community at large but has an obvious and significant impact on the reputation of this city. The judge was plainly right to regard the applicant’s offence as a serious breach of the trust and privilege extended to him by the people of Hong Kong.”

In paragraph 34 of the judgment:-

“We do not agree that this court should attempt some form of guidelines for the enhancement of sentences which come within this category. The circumstances of each case and each individual will be different, and crimes will differ in seriousness of their impact on the community and their effect on the reputation of Hong Kong.”

17.In the circumstances of this case, I would enhance the sentence by 5 months, bringing sentence of the defendant to 4 years and 3 months.  Defendant has pleaded guilty and is entitled to full one-third discount.  Accordingly, defendant is sentenced to 2 years and 10 months’ imprisonment.

18.In relation to the suspended sentence imposed on the defendant in relation to a breach of condition of stay, I will not activate the same.