HKSAR v. Restrepo Gonzalez Sebastian

DCCC 1157/2018

[2019] HKDC 593

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1157 OF 2018

----------------------

----------------------

---------------------------------

Reasons for Sentence

---------------------------------

1.Mr Restrepo, the defendant, has pleaded guilty to a single charge of trafficking in a dangerous drug, the particulars being the offence had been committed on 14 June of 2018 in Causeway Bay. The narcotic content of the drugs seized from the defendant is 5.42 grammes of cocaine.

2.The facts are quite simply stated and have been agreed by the defendant.  He was intercepted as a result of a stop-and-search outside a premises of No 58, Percival Street in Causeway Bay.  A search was conducted of the premises shortly afterwards, and the search brought to light 22 plastic bags containing the powder, which was the dangerous drugs, found on a bed, some soda powder, some cash in the sum of over $61,000, some items which would be used in the trafficking of the drugs, such as transparent resealable bags, electronic scales and further plastic bags.

3.The street value of the drugs seized was agreed at $12,608 and a narcotic content of 5.42 grammes found in a total of 12.8 grammes of the powder, so it is about one-third in terms of its purity.

4.The defendant made various admissions under caution, admitting he lived in the premises and he had the keys to those premises, and the defendant has admitted possessing the drug for the purpose of unlawful trafficking in it.  Also of note, that at the time of the commission of the offence, the defendant was a holder of a Form 8 under the Immigration Ordinance. 

5.Subsequent information from the Immigration Department has indicated the Form 8 Recognizance was served to the defendant pending removal arrangements subject to any legal impediment is their definition, so he was under a Form 8 to assist and facilitate his removal from Hong Kong.

6.The defendant had submitted a written signification in respect of giving an indication for claiming non-refoulement protection, but that was not made out and has not been processed, so the defendant was not at the time of his being in Hong Kong a claimant from non-refoulement protection in Hong Kong.

7.Dealing too with his personal situation, he is now aged 27.  He is a native of Colombia, educated to secondary school education level in that country.  He has no criminal convictions in Hong Kong. He arrived in Hong Kong in 2017, has no employment history, it is said, in Hong Kong. 

8.In terms of his mitigation, the defendant was trying at some point to study to become a lawyer, but was unsuccessful in that and has taken up a job of event promotion, and that is the reason, he says, that he came to Hong Kong on or around 7 December 2017, trying to find work in the field of event management because of the number of music festivals that occur here.

9.The defendant at the time of his arrest had overstayed and we know that he had informed the Immigration Department about his overstaying.  We can see that from a letter that he produced.

10.The defendant, by his own admission, is a consumer and has been a consumer of cocaine.  Whether he is addicted to it or not is a question, but he is certainly a substantial consumer on his own admission.  His consumption of cocaine in Hong Kong, he said, came as a result of depression and his inability to find any legal employment in this city, and he says in mitigation that the drug itself was mainly for his own consumption and the balance of it for selling in order to sustain his habit of consuming cocaine.

11.There is some support for that from a drug test taken in Lai Chi Kok Detention Centre shortly after the defendant’s arrest, which show him to be testing positive for cocaine.

12.The defendant expresses remorse in mitigation and also in a letter he has written to the court.

13.And, of course, it is also said in mitigation the defendant will be removed from Hong Kong once his sentence is completed and will resume his life with his own family in Colombia.

14.Turning to the approach to sentencing in a case such as this, the trafficking of the drug cocaine is covered by guideline sentencing. The defendant, having regard to the quantity of drug, falls into the starting point of between 2 to 5 years’ imprisonment, which is for a quantity of the drug up to 10 -- of 10 grammes.  So a starting point will be determined depending upon where the quantity of drug lies in relation to that starting point.

15.I have been referred to a case called HKSAR v Yepes Santana, which is at 447/2017, where, for a similar quantity of cocaine, a starting point adopted by the court was 30 months’ imprisonment.  That would appear to be a calculation that is appropriate, given the range available to the court in the guideline.

16.The defendant then adds in mitigation there are two further mitigating factors. 

17.One is the claim by him that a portion of the drugs were for his own self-consumption.  That is an available mitigating factor and the court can adjust the sentence to reflect the fact that not all the drugs were for trafficking.  Where a significant portion of drugs is for the defendant’s own consumption, a discount of between 10 to 25 per cent from the basic starting point can be appropriate.  The court need not specify the relative amounts or proportions in making that decision.

18.The final mitigating factor would be defendant’s plea of guilty.

19.Before I turn to the actual calculation of sentence, I will deal with the question of whether there is an aggravating factor in this case.  In the facts, the defendant is referred to as a Form 8 holder.  In the case of Criminal Appeal HKSAR v Norena Gutierrez, CACC 319/2014, the fact that the defendant is a Form 8 holder and if possession of Form 8 is an aggravating factor by the defendant is considered in that case and can it be held to be an aggravating factor.

20.The way in which the court has resolved that is on the basis that, where the defendant is a Form 8 holder and a claim for non-refoulement is made, defendant is punished more heavily by virtue of the fact that an element of his culpability is the cause of harm to Hong Kong, to which Hong Kong would not otherwise be exposed but for the fact that it had allowed him to remain in Hong Kong and at liberty pending the determination of his Immigration claim.

21.In fact, in this case, the defendant was at liberty pending the completion of removal arrangements for him, so he is not in the same category as a Form 8 holder who has made an application for non-refoulement.  So I find the aggravating factor set out in the court in that case is not appropriate to this defendant.

22.Turning to the general calculation of sentence then, I will calculate the sentence as follows. 

23.I determine a starting point of 30 months’ imprisonment.

24.I do find the defendant would have consumed what is described as a significant portion of the drug for his own consumption.  I base this on the fact the defendant can be seen to be a drug consumer and his only means of support for that consumption of drug would be by selling at least a portion of the drug.

25.I shall deduct from that original starting point a total of 10 per cent, which is 3 months, taking a starting point now of 27 months’ imprisonment.

26.The defendant is entitled to one-third deduction from that, which leads to a final sentence of 18 months’ imprisonment, and that is the sentence that will be imposed by the court:  18 months’ imprisonment.