HKSAR v. Quiceno Arango Carlos Ariel

DCCC 496/2018

[2018] HKDC 1405

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 496 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug.

2.The facts admitted by the defendant reveal that at around 11:30 pm on 29 March 2018, police officers found the defendant acting furtively at Lan Kwai Fong in Central.  They intercepted the defendant and conducted a body search on him, and during the search, police officers found on the defendant in his left front trousers pocket a plastic bag containing solid suspected to be dangerous drugs (Exhibit 1) and inside his underpants 11 plastic bags containing solid suspected to be dangerous drugs (Exhibit 2). 

3.Government chemist subsequently confirmed that Exhibit 1 contains 0.79 grammes of a solid containing 0.68 grammes of cocaine, and Exhibit 2 contains a total of 8.42 grammes of a solid containing 5.46 grammes of cocaine.

4.The total drugs seized in Exhibits 1 and 2 were 9.21 grammes of a solid containing 6.14 grammes of cocaine.  The total estimated street value was around HK$9,292.89.

5.One mobile phone, cash of HK$13,428 and RMB$100 were also found on the defendant.

6.In a subsequent cautioned video-recorded interview, the defendant stated, inter alia, that Exhibits 1 and 2 were cocaine.  They were for self-consumption.  At the material time, he was waiting for his friends for a party.  He purchased Exhibits 1 and 2 from a male together with a few friends.  He contributed HK$3,000 for the same.  Everyone likes to share drugs in a party, just like people would share a birthday cake at a birthday party.  He was a regular user of dangerous drugs and could take four to six packets of drugs per night.  He could finish Exhibits 1 and 2 in one night with his friends.

7.The defendant is a Colombian national.  He arrived at Hong Kong on 8 February 2018 as a visitor.  He has a clear record in Hong Kong. 

8.In mitigation, the defendant’s solicitor, Mr Kong, tells the court that the defendant lives in Colombia with his girlfriend and two children born to them.  He came to Hong Kong for business.  He earns a few thousand US dollars in trading of shoe material.  Mr Kong says the defendant is a drug addict himself.  On the night in question, the defendant was going to a party organised by his friends.  He bought the drugs in question for his own consumption and sharing with his friends in the party.  He would finish all the drug in the party. 

9.Mr Kong stresses that the basis of the plea is the sharing of the drug with friends.  The defendant would consume the drug with three to four people in the party.  Therefore, a significant proportion of it was for his own consumption.  Counsel asks the court to give a discount from the beginning starting point in sentencing the defendant.  The defendant, however, elects not to give evidence.  Mr Kong is also unable to tell the court the exact quantity of drug the defendant would consume in the party.

10.Miss Fu, senior public prosecutor, accepts the basis of the plea put forward by the defence, ie the so-called social trafficking.  She also accepts that part of the drug was for the defendant’s own consumption.  However, she does not accept that the proportion that the defendant intended to consume was a significant proportion.

11.Trafficking in dangerous drug is a very serious offence.  The Court of Appeal laid down the sentencing guidelines in R v Lau Tak Ming[1] and AG v Rojas[2].  A defendant trafficking cocaine up to 10 grammes should be sentenced to jail for 2 to 5 years.

12.The quantity of cocaine in this case is 6.14 grammes.  The initial starting point for sentence should be 3 years and 9 months’ imprisonment.

13.Supplying drugs to friends in the absence of commercial gain does not provide mitigation justifying any specific discount. In particular, the quantity of drug the defendant would share with his friends was not small.  What is more important for the court’s consideration in the present case is whether the proportion the defendant intended to consume himself out of the drug in question can be properly regarded as a significant proportion.

14.Self-consumption may give rise to a discount of sentence between 10 per cent and 25 per cent of the basic starting point.  See HKSAR v Chow Chun Sang[3].  However, only a significant proportion for self-consumption can afford this range of discount.  See HKSAR v Tam Ling Yuen[4].

15.In the present case, on the one hand, Mr Kong is unable to specify the exact quantity of drug the defendant would consume in the party, and the defendant elected not to give evidence. Yet it was his right.  On the other hand, the defendant’s claim is consistent with the version he put forward in the video-recorded interview.  Moreover, the basis of the defendant’s plea, namely, social trafficking by sharing the drugs with friends was accepted by the prosecution.  I would also accept the claim through counsel, which is not contradicted by any evidence, that the drug would be shared with three to four people in the party.

16.In my judgment, while the defendant did not give evidence, the claim of the defendant is not wholly implausible.  In the result, I am going to accept that the proportion of drug the defendant intended to consume in the party was a significant proportion.

17.Taking into account the basis of the plea and the proportion intended for the defendant’s own consumption, I would reduce the starting point by 6 months which is about a discount of 13 per cent. I therefore take 39 months as the starting point for sentence.  I will further allow a one-third reduction for the defendant’s plea of guilty.  In the result, the defendant is sentenced to 26 months’ imprisonment.