HKSAR v. Arias Amaya Steven Antonio and Another

HCCC 113/2019

[2019] HKCFI 2638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 113 OF 2019

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

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

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

Transcript of the Audio Recording
of the Sentence in the above Case

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

COURT:

The two defendants pleaded guilty before a magistrate to the charges laid against them and were committed to the Court of First Instance for sentence. The main charge for which they were convicted is Charge 5, which is for the offence of trafficking in a dangerous drug, for which they were jointly charged. They were also together convicted of Charge 4 for possession of a dangerous drug. In addition, D1 was, by himself, convicted of Charges 1 and 2 for possession of a dangerous drug and D2 was convicted of Charge 3 which is also for possession of a dangerous drug.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of each defendant, and mitigation put forward on his behalf.

The facts of the case may be summarized as follows: When police officers were on duty outside a flat on the 15th floor of a building, the two defendants were intercepted. Upon search, both defendants were found in possession of the keys to the flat. With the keys, entry into the flat was gained. Inside the flat, defendants were searched. On D1, a packet of cocaine, which is the subject matter of Charge 1, was found. On D2, two packets of cocaine, which are the subject matters of Charge 3, were found.

Officers then executed a search warrant and conducted a search of the flat. In the living room, a packet of cocaine, which is the subject matter of Charge 2, was found inside a drawer. In a room, three packets of cannabis, which are the subject matters of Charge 4, were found on a chair, and 70 packets of cocaine, which are the subject matters of Charge 5, were found in a locked drawer. Inside the drawer, an electronic scale and $100,000 were also found. D2 was in possession of the key to this drawer. Inside this room, a total of $14,100, three electronic scales and more than 100 transparent resealable bags were, inter alia, also found.

D1 made admission short of trafficking in relation to the drugs except that found on D2. D2 admitted to be a drug user. They both now admitted trafficking in the drugs in Charge 5.

The drug in relation to each of the charges was: Charge 1, 0.66 gramme of a solid containing 0.52 gramme of cocaine; Charge 2, 0.07 gramme of a solid containing cocaine; Charge 3, 1.42 grammes of a solid containing 1.12 grammes of cocaine; Charge 4, 1.82 grammes of cannabis in herbal form; and Charge 5, against both defendants, 49.3 grammes of a solid containing 38.8 grammes of cocaine.

D1 and D2 are both Colombian nationals. D1 is 23 years of age and D2 37 years. Both were educated to secondary education. Both came as tourists. D1 intended to leave but D2 had lodged a claim for non-refoulement.

In mitigation, learned counsel for D1, Mr Stephenson, stressed that D1 had pleaded guilty before a magistrate. He informed the court that D1 owned a clothing manufacturing company in Colombia employing about 10 people, earning about US$300 per month. He had been a drug user for recreation purpose. He claimed some of the drugs found were for his own use. D1 expressed his concern that he would suffer some hardship in prison as he does not speak English or Chinese. A letter from D1 was produced in which he outlined his background and expressed remorse. He said his father had suffered a heart attack for the stress caused to the family by his wrongdoing.

Learned counsel for D2, Mr Boyton, also stressed that D2 had pleaded guilty at the earliest opportunity, and submitted a discount should be given to the trafficking charge for the reason of self-consumption as evidenced by the defendant’s urine test at the reception centre. D2 started consumption of drug only when he had arrived in Hong Kong, labouring under stress as he came to know that his mother was suffering from serious illness in her pancreas and stomach but was not able to return home since his father had told him of some serious threat of safety there. This threat was indeed the basis on which he laid his non-refoulement claims.

Mr Boyton also informed the court that D2 had participated in the campaign of Father Wotherspoon to warn people against participating in drug trafficking. Family members of D2 have participated as well. The father wrote a letter to show what had been done and is present in court to show support. D2 also wrote a letter in which he outlined his background, what happened to his family after he had come to Hong Kong and how he came to consume drug. He also expressed remorse and his wish to return home to shoulder his responsibility as a son and father.

The most serious offence in this case is obviously that for Charge 5, which is for trafficking in 49.3 grammes of a solid containing 38.8 grammes of cocaine. In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. In Lau Tak Ming, the Court of Appeal held that if the narcotic content of the heroin being trafficked in was between 10 to 50 grammes, a sentence of 5 to 8 years should be considered.

In all the circumstances of the present case, I do not consider there are any reasons to justify a departure from the tariff. Having considered the whole of the relevant circumstances and mitigation of learned defence counsel, in my judgment, the appropriate starting point for Charge 5, having regard to the quantity of the drug involved, should be 7 years.

Both defendants claim that part of the drug was intended for his self-consumption. This assertion was supported by urine test reports of both defendants. D2 had also admitted at the time of arrest to be a drug user. Both of them were not able to say the proportion of drug which was intended for self-consumption and indicated that they were not going to testify on the issue. In the circumstances, I am prepared to accept that both defendants have been drug users and that part of the drugs seized would have been retained for their own consumption. However, as I have indicated to counsel, I am not able to accept that a substantial proportion of the drug in relation to Charge 5 would have been for self-consumption.

In the case of D1, the charges for which he had been convicted show that there were drugs for his own consumption already. Even if he was to consume part of the drugs in relation to Charge 5, I do not accept the proportion for such purpose would have been substantial. In addition, I have to take into account the latent risk which in my assessment was very high.

Similar consideration applies to D2. I am persuaded to accept that part of the drug would have been intended for the own consumption of D2 but the quantity would have been minimal. It should also be noted that D2 was in possession of the drugs in relation to Charges 3 and 4 which could be used to satisfy his needs.

In the circumstances, having regard to the observation of the Court of Appeal in HKSAR v Tam Ling Yuen CACC 159/2015, I do not consider it justified to impose a lighter sentence by reason of the assertion of self-consumption. Quite to the contrary, the fact that D2 was staying in Hong Kong, having lodged a non-refoulement claim, is an aggravating factor. For this reason, I enhance the starting point for D2 by 9 months. Therefore, in relation to Charge 5, I will adopt an ultimate starting point for 7 years for D1 and 7 years and 9 months for D2.

As regards Charges 1, 2 and 4 for which D1 was charged for possession of the drug in question, the first two charges concerned cocaine and Charge 4 concerned 1.82 grammes of cannabis in herbal form. The total quantity of the cocaine in question was 0.73 grammes of a solid containing 0.52 grammes of cocaine. Charge 2 concerned only traces of cocaine. I adopt 12 months as the starting point for Charge 1 and 9 months for Charge 2. For Charge 4, having regard to the guilty plea, I am of the view that a fine of $400 is sufficient.

As regards Charges 3 and 4 for which D2 was charged for possession of the drugs in question, Charge 3 relates to 1.42 grammes of a solid containing 1.12 gramme of cocaine and Charge 4 relates to a small quantity of cannabis as mentioned earlier. I adopt 12 months as the starting point for Charge 3. And for Charge 4, I will also impose a fine of $400.

Both defendants pleaded guilty before a magistrate and are therefore entitled to the full one-third discount for the imprisonment terms. I appreciate D1’s concern, being a foreigner in prison, but having considered the seriousness of the offence he committed and sentencing precedents such as HKSAR v Hong Chang Chi [2002] 1 HKLRD 495, I do not find D2 is entitled to any further discount on this ground.

In relation to D2’s assistance in the campaign of Father Wotherspoon, having considered the information provided and HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, I am persuaded to give D2 a further discount of 2 months for Charge 5. The above is, in my judgment, the extent of discount each defendant is entitled to.

The defendants, please stand up. For the reasons I have mentioned, D1, I sentence you to 8 months’ imprisonment for Charge 1; 6 months’ imprisonment for Charge 2; a fine of $400 for Charge 4; 4 years and 8 months’ imprisonment for Charge 5. Having regard to totality, I order the imprisonment terms for Charges 1, 2 and 5 to run concurrently. You are to serve a total imprisonment term of 4 years and 8 months for the three charges.

D2, I sentence you to 8 months’ imprisonment for Charge 3; a fine of $400 for Charge 4; 5 years’ imprisonment for Charge 5. Having regard to totality, I order the imprisonment terms for Charges 3 and 5 to run concurrently. You are to serve a total imprisonment term of 5 years for the two charges.

And for both defendants, in case you fail to pay the fine for Charge 4 on or before 4 October 2019, you are to serve an imprisonment term of 3 days. And following HKSAR v Castano Arango Jose Reinel CACC 174/2014, such imprisonment term is to be served concurrently with the sentences imposed respectively on each of you.