HKSAR v. Arango Castano Johny Ricardo

DCCC 813/2018

[2019] HKDC 1056

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 813 OF 2018

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REASONS FOR SENTENCE

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1.Defendant pleaded guilty to one charge of trafficking in a dangerous drug (Charge 1), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The defendant also faces another charge of illegal remaining (Charge 2), contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115. However, this charge has been adjourned till after the completion of his torture claim. So I only deal with the sentence in relation to Charge 1, that is the trafficking in a dangerous drug.

Facts

2.At around 11:40 pm on 21 July 2018, PC 19374 mounted an anti-narcotics operation in the vicinity of Lan Kwai Fong, Central.  At about 11:51 pm, PC 19374 spotted the defendant looking suspicious.  He then intercepted the defendant outside the Ground Floor, 49 Hollywood Road, Central, Hong Kong.  He revealed his police identity and conducted a search on the defendant’s body. Upon being searched, the defendant turned around to flee and put his right hand into the right rear pocket of his jeans.  PC 19374 intercepted the defendant again and continued with the body search.  Six packets of suspected dangerous drugs (Exhibit 1) were found in the defendant’s right hand.  Cash of HK$780 was also found on the defendant.  PC 19374 arrested the defendant for trafficking in a dangerous drug.

3.In the presence of Spanish and English interpreters, the defendant at a video-recorded interview admitted under caution, inter alia, the following:-

a) Exhibit 1 belonged to him and he was a drug user. He knew that Exhibit 1 was cocaine;

b) He bought Exhibit 1 from an unknown male in Lan Kwai Fong at the price of HK$5,000;

c) He would consume all six packets over the night as he would share Exhibit 1 with the girls he met;

d) He had US$5,000 when he came to Hong Kong, and he had almost used up his money;

e) He had illegally entered Hong Kong from Mainland China less than 2 months ago.

4.Exhibit 1 was later confirmed by the Government Chemist to be a total of 3.65 grammes of a solid containing 1.98 grammes of cocaine.

5.The estimated street value of Exhibit 1 in July 2018 was around HK$3,785. 

6.At the material time, the defendant possessed Exhibit 1 for the purpose of trafficking.

Criminal record

7.The defendant was sentenced by the court to 6 weeks’ imprisonment suspended for 3 years in November 2015 for an offence of breach of condition of stay.  This was his only conviction record.

Mitigation

8.The defendant, aged 34, is single and was born in Colombia.  He received education up to secondary level in Colombia.  His father manages a bus and his mother is a clothes hawker.  His younger brother, aged 18, has been suffering from depression for the last 10 years.  His grandmother also resides with his family.

9.In Colombia, he worked as a merchant dealing in spare motor cycle parts and earned about US$1,500 per month.  He used to contribute half of his income to his family.  He has been addicted to drugs since 2011.  He was admitted to the rehabilitation centre for drugs and also assisted others to join the rehabilitation process. 

10.In 2018, his life was in danger in Colombia so he escaped to Hong Kong. He only became a NCF claimant after the commission of the present charge.

11.Majority of the subject cocaine was for his own consumption. However, he would share some of the subject cocaine with the girls he met, i.e., social trafficking.  Defendant’s urine tests taken after his arrest showed positive results in relation to cocaine and other drugs. 

12.The defendant is remorseful and has learned a serious lesson.  He promises to stay away from dangerous drugs.

13.A mitigation letter written by the defendant’s mother together with supporting documents was submitted by the Defence for my consideration.  As revealed in her letter and the documents enclosed, the defendant was a drug addict and had been sent to a rehabilitation centre to deal with his drug problems.

14.Mr Sadhwani also relies upon HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, HKSAR v Cheng Man Bor, CACC 234/2007, SOJ v Chan Chun Fai [2011] 3 HKLRD 116 in support of the mitigation on self-consumption and asked me to consider imposing a sentence which would enable his immediate release. 

15.Mr Sadhwani accepts that at the time of the present offence the defendant was in breach of a suspended sentence.  However, he urges me not to activate it as the present offence was not a similar offence and there was a long time lapse between the passing of the suspended sentence and the commission of the present offence.

Sentence

16.I have carefully considered everything said by Mr Sadhwani in mitigation on behalf of the defendant. 

17.The starting point upon conviction after trial for trafficking in cocaine up to 10 grammes is between 2 years’ and 5 years’ imprisonment (see AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370).  Trafficking in 1.98 grammes of cocaine will therefore attract a starting point of 31 months.

18.At the time of the present offence, the defendant was in breach of the suspended sentence imposed on him in 2015.  However, he has no similar conviction and the offence relating to the suspended sentence was of a different nature.  Therefore, I will not consider his breach of the suspended sentence as an aggravating factor.

19.On the issue of self-consumption, in deciding how much weight should be attached to the claim, I have carefully considered the authorities relied upon by the Defence and HKSAR v Choi Chun Wo [2018] 5 HKLRD 717. 

20.The Prosecution’s stance is that there is no evidence to rebut this issue. 

21.I have made it clear to the Defence that I am not prepared to accept a bare assertion from the bar table that a significant proportion of the subject cocaine would be consumed by the defendant without any credible factual evidence on the amount of consumption. After reading the case of Choi Chun Wo provided by the Prosecution, Mr Sadhwani accepts this to be the legal position.  As no evidence would be called by the defence to substantiate the issue of significant proportion, Mr Sadhwani accepts that it would be unrealistic to ask the court to consider on this basis.

22.As the subject cocaine was separately packed (see also the photograph provided by the Prosecution) and he was going to share those drugs with the girls he met that evening, I do not consider that a significant proportion would be consumed by him. 

23.However, in light of the urine test results, his statement to the police under caution and the supporting document, i.e., the certificate issued by the rehabilitation centre in question, confirming that the defendant was a drug addict and was accepted by their centre for rehabilitation, I am prepared to accept that the defendant is a drug consumer and some of the subject cocaine might be consumed by him.

24.Having regard to all the circumstances of the arrest, the latent risk factor and the fact the possession of drugs carries a sentence in any event, I am satisfied that the starting point of 31 months should be reduced by 2.5 months to 28.5 months. 

25.Apart from his guilty plea, I do not see any other mitigating factors which justify further deductions.  I sentence the defendant to 19 months’ imprisonment for the present offence.

26.As to his breach of suspended sentence, I note that at the time of the present offence there were still more than 3 months to go before the end of the operational period.  In my view, it was not a short period.  In view of all the circumstances which have arisen since the suspended sentence was passed, including the nature and the facts of the present offence, I do not consider it unjust to activate the 6 weeks’ imprisonment in full.  I also do not see any reason including matters advanced in mitigation why I should not activate it in full.  I therefore order the 6 weeks’ imprisonment to run consecutively to 19 months’ imprisonment for the present offence making a total of 19 months and 6 weeks’ imprisonment.