HKSAR v. Lopez Florez John Alejandro

DCCC 416/2018

[2018] HKDC 1193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 416 OF 2018

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REASONS FOR SENTENCE

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1.The defendant is charged with and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134).

Introduction

2.The subject matter of the dangerous drug in question comprises of, firstly, one packet containing 0.77 gramme of crystalline solid containing 0.59 gramme of cocaine; and secondly, 16 packets containing a total of 12.43 grammes of a powder containing 7.82 grammes of cocaine (Exhibit 1 and Exhibit 2).

The Facts

3.The present offence is a simple stop and search case.  What happened was on 9 March 2018, at around 11:30 pm, a police constable PC15912 (PW1), noticed the defendant acting furtively at the junction of Lyndhurst Terrace and Cochrane Street in Central.  At the time, the defendant looked around and scurried along Lyndhurst Terrace.

4.PW1 immediately intercepted the defendant for a body search.  During the search, the defendant’s hands kept trembling.  He looked extremely nervous and covered his nether regions when the search reached the waist of his pants.  As a result, PW1 took the defendant to a public toilet for a more thorough and comprehensive search.  Subsequently PW1 found Exhibit 1 in the left-back pocket of the defendant’s pants, and Exhibit 2 in the defendant’s underpants which was contained in a plastic bag.

5.The total number of 17 packets of drugs were founded in different colours, namely, 6 were brown; 7 were black and 4 were blue.

6.All the suspected dangerous drugs were later sent to government chemist who subsequently confirmed that the content of the drugs as cocaine and the street value was HK$13,318.80.  At the time of arrest, the defendant had with him HK$4,675 and one mobile phone. 

Criminal record and the background of the defendant

7.The defendant is a Colombian national.  On 12 January 2018, he entered Hong Kong as a visitor with his Columbian passport and he was permitted to stay until 12 April 2018. 

8.He is now 32 years old and he had received university education in Columbia.  He has a clear record in Hong Kong.  According to his counsel, I was told that although he is still single but he had two daughters, one 8 years old and one 3 years old and those two daughters are living with their mother in Columbia.  Defendant worked as a trader and this time he came to Hong Kong as a tourist but I was told he also intended to go to China for business as well.

9.In relation to the present offence, his counsel informed me that the defendant was very remorseful for what he had done.   His decision to plead guilty had reflected his remorse.  This morning, I was submitted with a handwritten letter by the defendant in Spanish and through the assistance of the Spanish interpreter, the defendant had expressed his remorse once again and asked for forgiveness.  He told the court that he now treasures very much the freedom which he has lost since his arrest and he said that he wanted to apologise to the people of Hong Kong and vowed that he will never return to prison again and commit this silly offence in future.

10.Defence counsel told the court that out of all the quantity of the drugs, the one small packet containing 0.59 gramme of cocaine was indeed for defendant’s own consumption whilst for the bulk of the rest of the cocaine, the defendant intended to sell them for profit.

Sentencing Considerations

11.Trafficking in a dangerous drug is indeed a very serious offence in Hong Kong and I believe also in any part of the world.  In Hong Kong, those involve with trafficking in dangerous drugs should know that the maximum sentence is one of the life imprisonment and a fine of HK$5,000,000.  Those who were convicted of dangerous drugs would expect no mercy from the court.

12.The Court of Appeal in Hong Kong have already said that general speaking, family circumstances is not going to be accepted as mitigation for a serious offence like this.  For a long time, the court has said repeatedly that it would not accept economic reasons for committing crimes as serious as the present.  Although the defendant had said that Exhibit 1 was possessed by him for the purpose of his own taking or consumption but since the portion is so small, it pales into insignificant when I come to consider the overall sentence of the present offence.  The only effective mitigation is therefore his timely plea, for which he would be given a full one-third discount from the sentence.

13.The Court of Appeal has said that sentencing for trafficking in cocaine is aligned to the guidelines of trafficking in heroin contained in The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370[1]. According to the tariff there, up to 10 grammes of cocaine, the starting point would be 2 to 5 years.

14.Here, the total quantity of cocaine, be it in the powder form or in the crystalline solid form, is in a total of 8.41 grammes.  According to the tariff, the starting point should be 4½ years.

15.For this present offence, after the 1/3 discount, I sentence the defendant to 3 years’ imprisonment.