HKSAR v. Giraldo Guiza Leon Bhadir

DCCC 602/2018

[2019] HKDC 456

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 602 OF 2018

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REASONS FOR SENTENCE

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1.The defendant is convicted upon his own guilty plea of one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) the Dangerous Drugs Ordinance, Cap 134. The narcotic content in this case was 4.30 grammes of cocaine.

Facts

2.The defendant is a Columbian visitor who came to Hong Kong on 18 February 2018.  At about 11:54 pm on 4 May 2018, the defendant was intercepted by the police outside Cochrane Street in Central.  Upon search, 16 packets of suspected dangerous drugs (“Exhibit 1”) were found inside the defendant’s necktie.  The defendant had HK$8,016 on him.

3.Exhibit 1 was subsequently found to contain a total of 9.99 grammes of a solid containing 4.30 grammes of cocaine.  The street value of Exhibit 1 was about HK$9,800.

4.The defendant admitted that at the material time, he was in possession of Exhibit 1 for the purpose of trafficking.

Mitigation

5.The defendant has a clear record in Hong Kong.  He was born in April 1988 and is now 30 years old.  He is married with two daughters aged 4 and 6 respectively.  He is a Columbian.  Before he came to Hong Kong for sight-seeing, he was a salesman earning approximately US$700 per month.  A letter from the defendant’s father was submitted to the court asking for leniency.

6.It was submitted that a portion of Exhibit 1 was for the defendant’s own consumption.  Mr Donald fairly submitted that the result of urine test soon after the defendant’s arrest was negative, and that there was no other evidence to substantiate the defendant’s allegation that a portion of Exhibit 1 was for his own consumption.

7.Mr Donald submitted, inter alia, the following cases for the court’s consideration:-

• HKSAR v Yip Hiu Tung DCCC 91 of 2018

• HKSAR v Yepes Santana Gloria Esneda DCCC 447 of 2017

Sentence

8.The relevant sentencing guidelines for trafficking in cocaine are set out in R v Lau Tak Ming[1] and Attorney General v Pedro Nel Rojas[2]: where the quantity of narcotic is up to 10 grammes, the sentence upon conviction after trial is between 2 and 5 years’ imprisonment.

9.In HKSAR v Barrow Lamin[3], the appellant was convicted of two charges of trafficking in a dangerous drug.  4.24 grammes of cocaine were involved in those two charges.  The sentencing judge adopted a starting point of 3 years and 3 months’ imprisonment.  On appeal against sentence, Mr Justice Macrae said the sentencing judge’s starting point for the quantity of cocaine, ie 4.24 grammes of cocaine, cannot be criticized.

10.In the present case, 4.30 grammes of cocaine was involved in a single charge of trafficking.  I am minded to adopt a starting point of 3 years’ imprisonment.

11.Despite the defendant’s allegation that a portion of Exhibit 1 was for his own consumption, the result of urine test soon after his arrest was negative.  There is no other evidence to substantiate his allegation of self-consumption.  In HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, it was held that the range of discounts suggested in Chow Chun Sang[4]was not relevant unless the dangerous drugs for self-consumption were to be regarded as a “significant proportion” of the dangerous drugs in which the offender unlawfully trafficked.  I found that there is no evidence whatsoever to substantiate the defendant’s allegation of self-consumption.  I am not satisfied that a significant proportion of Exhibit 1 was for the defendant’s own consumption.  I therefore refuse to give him any discount for his allegation of self-consumption.

12.I give the defendant one-third discount on sentence in light of his timely guilty-plea, thus reducing the sentence to 2 years’ imprisonment.  There being no other valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 2 years’ imprisonment.