HKSAR v. Javier Duvan Amado Perez

DCCC 343/2019

[2019] HKDC 1675

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 343 OF 2019

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

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

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

Reasons for Sentence

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

Charges and facts

1.The Defendant (“D”) pleads guilty to 2 counts of trafficking in a dangerous drug. 

2.At 7:56 pm on 30 January 2019, police officers laid ambush on 7/F, Siu King Building, No. 14-16 Tsat Tsz Mui Road, North Point. At 9pm on the same day, D was intercepted as he left Flat B on the same floor. Upon officers’ demand for body and house search, D rushed to Room 1 inside Flat B (“Room 1”) and broke the door lock. Officers obtained entry into Room 1 by ramming through the door.

3.Upon search of D, a sock was found between the 2 underpants that he wore. The sock contains 10 red packets, each containing a re-sealable bag of white powder (E1). Cash of HK$1,510, RMB101, £5, US$3, JP¥1,000, 2 mobile phones and 3 keys were also found on D.

4.Upon search of a cabinet in Room 1, 23 re-sealable bags containing white powder (E2), 2 small electronic balances with powder traces (E3-E4), 121 empty red packets, 151 empty re-sealable bags, cash of HK$24,000 (in HK$1,000, HK$500 and HK$100 banknotes, stacked up and wrapped by a rubber band), a notebook and D’s passport were found.

5.In subsequent VRI interview, under caution D said that:

(a) He had arrived Hong Kong on around 25 or 26 November 2018 by train from China;

(b) He entered Hong Kong on the strength of a Columbian Passport;

(c) He lived alone in Room 1 and did not live anywhere else; and

(d) The 10 packets of suspected drugs found on him were for his self-consumption.

6.Government chemist confirmed that:

(a) E1 contains a total of 5.63g of a solid containing 4.41g of cocaine (Charge 1);

(b) E2 contains a total of 13.2g of a solid containing 10.6g of cocaine (Charge 2); and

(c) E3 and E4 contain traces of cocaine.

7.D rented Room 1 on 4 December 2018 and he paid cash for a month’s rent (HK$6,000) and the deposit (HK$5,000). A tenancy agreement was signed and 3 keys were given to D. The tenancy was renewed through WhatsApp on 10 January and rent of HK$6,000 was paid through bank transfer.

8.Movement record shows that D arrived Hong Kong on 27 November 2018 from China via the express rail link.

9.At the material time, D was in possession of E1 and E2 for the purpose of unlawful trafficking.

Mitigation

10.D is 26 years old, a Columbian national from Bogota.  He has a clear record.  His family is in Columbia.  It consists of his wife, his 4-year-old son, and his 84-year-old maternal grandmother.  Before he came to Hong Kong, he was working as a clothing salesman as well as studying in a university in Bogota.  He is the sole breadwinner of the family.  His wife has to look after his maternal grandmother, who is in deteriorating health, and his son, who suffers from asthma.  He has developed psychological problems and refuses to go school as a result of D’s absence from home.  He is in need of psychological treatment which the family cannot afford. 

11.D committed the present offences to provide for his family. 

12.His counsel Mr. Ross asks me to consider that 10% of the drug seized was intended for his own consumption.  I do not accept this stance as it is inconsistent with his pleas to both charges and admission to the summary of facts, all of which refer to the entire quantity as the basis of the trafficking charges. 

Sentencing considerations

13.The sentencing guidelines indicate 2 – 5 years’ imprisonment for trafficking below 10 grammes of cocaine, and for 10 – 50 grammes it is 5 – 8 years (R v Lau Tak Ming [1990] 2 HKLR 370; Attorney General v Rojas [1994] 1 HKC 342).

14.It has long been accepted that it is appropriate where two or more counts of drug trafficking are charged and the offences occur on the same day and at the same time, where the reason for there being two or more charges as opposed to one is primarily that the drugs are located in different places, for the sentencer to add the total of the active ingredient of the drugs together to arrive at a notional starting point (HKSAR v Lam Chi Wa CACC 94/2008, per Saw J).

15.In our present case, the entire quantity of cocaine is 15.01 grammes.

Sentencing the Defendant

16.I regard that the reason for having two charges of trafficking here is a technical one, not a substantive one, only due to E1 and E2 being found in two different places.  I take a starting point of 5 years 3 months (i.e., 63 months) for each charge. After a one-third discount for the plea of guilty, the sentence is 3 years 6 months (i.e., 42 months).  The sentences shall be concurrent.