HKSAR v. Castro Rengifo Alfredo

DCCC 1158/2017

[2018] HKDC 1228

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1158 OF 2017

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Reasons for Sentence

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

2.At around 1.50 am on 24 September 2017, police officers on patrol spotted the defendant walking hastily from Lyndhurst Terrace to Cochrane Street.  Police then intercepted him.  Upon search, one black umbrella cover was found inside the defendant’s underpants, which was found to contain altogether, 13 plastic bags containing a total of 8.17 grammes of a powder containing 5.97 grammes of cocaine. 

3.The estimated street value was around $7,500.

4.The defendant also had 2 mobile phones, $8,000 cash and 5 yellow colour red packets on him at the time.

5.A Spanish interpreter was arranged in the subsequent video-recorded interview, from which the defendant further admitted that the drugs seized on him was cocaine.  At around 8 pm on 23 September 2017, his friend Adam, asked him to collect some cocaine from a white male in Wan Chai and then brought the cocaine to him in Central, at around 2 am on 24 September.

6.He then collected some cocaine and that white male also gave him a black umbrella cover, so that he could place the cocaine inside, then he went to Central by taxi to meet Adam.  He would hand the cocaine to Adam after meeting him and would then go to a party together and distribute the cocaine to other friends there.

7.The 6,000 cash seized on him was given to him by Adam.  Adam asked him to keep the money and he had paid 1,500 to Adam earlier for the dangerous drugs and the alcohol provided by the party.  And the 5 yellow colour red packets seized on him were given to him by the white male, to be handed over to Adam.

8.The defendant further said he is not an addict to cocaine and his family would give him around 5,000 to 8,000 every 2 months.  He was homeless and living on the street.

9.He came to Hong Kong from Columbia on about 23 October 2016.  He lodged a non-refoulement claim with the Immigration Department in January 2017.  The defendant is a Form 8 recognizance holder.

10.The defendant now admits having possessed the above drugs seized, for the purpose of unlawful trafficking.

11.The defendant is aged 48, a national of Columbia, clear record.  Mr Davies submitted that he only took those drugs to the party for sharing with friends, and he would also consume some part of it, instead of selling to anyone.  As to his status, he had already withdrawn the application some months ago and no longer a Form 8 holder.  Unfortunately, the defendant is also an HIV positive carrier and recently got treatment in Hong Kong.  It is likely that he will be sent back to Columbia in the near future.

12.The defendant pleaded guilty at the earliest opportunity and with full cooperation to the police, he hopes for a lenient sentence.

13.Trafficking in dangerous drugs is a very serious offence.  In 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 where for trafficking in cocaine up to 10 grammes, 2 to 5 years’ imprisonment shall be imposed.

14.In the present case, there were altogether 5.97 grammes of cocaine in 13 plastic bags, the facts were serious.  According to the above case, 3½ years’ imprisonment or more, shall be adopted as the starting point.  Not to mention that enhancement could be made because of his immigration status, as stated in HKSAR v Junaid Ahmed CACC 79/2017.

15.However, the defendant pleaded guilty at the earliest opportunity, saving court’s cost and time and given his health condition and his withdrawal from the application, enhancement may not be imposed.  I shall still adopt 3½ years’ imprisonment as a starting point, and that be reduced to 28 months, upon his guilty plea.

16.So in the circumstances, the defendant is sentenced to 28 months’ imprisonment for this offence.