HKSAR v. Mesa Cano Jose Alejandro

DCCC 350/2018

[2018] HKDC 1424

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 350 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty this morning to a single offence of trafficking in a dangerous drug.

2.He is a 32-year-old man from Colombia.  He was found on 9 February this year in Central with a narcotic quantity of 10.56 grammes of cocaine.  It was a simple stop and search.  Drugs were found in a cigarette box which contained four packets and also a coin bag containing 13 packets of what looked to the officer to be drugs.  When the quantities are added together they are found to be the 10.56 grammes in the charge.

3.The defendant had $5,500 in cash and a mobile phone.

4.In his interview, he set out that he would consume drugs himself, and gives us details of his own consumption.  He said he bought them for 4,000, which seems quite reasonable to say that, from somebody in Lan Kwai Fong.  He would consume it in bars by the gramme every three days and took it at weekends.

5.He was living in Hong Kong in a hotel.  He had come to Hong Kong back on 18 January for sightseeing and was here until 18 April.

6.The value of the drugs were said to be $11,000-odd.

7.The defendant’s antecedents show him to be a person of clear record, 32 years old, as I have already said, clearly a tourist in Hong Kong; no real connections here.

8.As far as sentencing is concerned, sentencing for this quantity of cocaine would be governed by the Lau Tak Ming guidelines for heroin, which puts it in the region of between 5 to 8 years’ imprisonment as a starting point for what would be for a person of clear record after trial, so the starting point here would be 60 months’ imprisonment.  I consider that to be the appropriate starting point in this case.

9.The defendant is naturally entitled to a one-third discount due to his plea of guilty.  There are no other factors to aggravate the sentence here.  There is one factor that could in this case mitigate the sentence from the 60 months’ starting point, and that is the fact the defendant has said in his record of interview he would have consumed the drug himself.  The defendant admits that he would be selling some of the drug and consuming some as well.  He does not consider himself to be an addict, but it is reasonable to assume, on the basis of what the defendant has told us, that he would be a consumer of this drug, and I am prepared to accept that as he would consume a quantity of the drug.

10.In all these cases, quantifying that always, to a certain extent, involves an element of speculation, but the courts, certainly the Court of Appeal, has acknowledged that a deduction from the starting point of between 10 to 25 per cent would be appropriate in a case where the defendant would consume a substantial quantity of the drug.  The defendant’s record of interview shows that he would consume a substantial quantity of this drug himself.  So I am prepared to allow for a discount on that basis.

11.As I say, the quantification of that does involve a value judgment.  What I will do is fix that at 15 per cent of 60 as the deduction, which would be a total of 9 months’ deduction from the 60 months, taking us down to a starting point of 51 months’ imprisonment. After deduction for plea of guilty, which is a further one-third deduction, that leaves us with an end figure, by my calculations, of 34 months’ imprisonment.

12.I consider that to be the appropriate sentence for this defendant for this offence:  a total of 34 months’ imprisonment.