HKSAR v. Garcia Aristizabal Maria Alejandra

HCCC 110/2019 & HCCC 111/2019
(Heard together)

[2019] HKCFI 3070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 110 & 111 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

I will read out my reasons for sentence. All defendants obviously can remain seated. I will deal with both HCCC 110 and 111/2019 together.

There was a raid and arrest of five Colombian nationals on 4 April 2018 in premises in Queens Road West. The police had received intelligence and obtained a search warrant for Flat A, 5th Floor, Wing Shing Building, 355-359 Queens Road West, Sai Ying Pun. It was suspected there was drug trafficking activities conducted from those premises and they were informed of three to four Colombian males being involved. One man was arrested as he left the premises, and after the police forced their way in, they found three other men and a woman inside. One man was in the living room whilst the other three were in the bathroom.

The prosecution’s case is that one of those three was attempting to flush drugs down the toilet, whilst the other man and woman threw drugs out of open windows. An officer was stationed below that window and saw drugs thrown out of the window before recovering seven pellets that had landed in the rear alley.

The man who was arrested first as he left the premises is Zapata Lopez Jhon Harold, hereinafter referred to as D1; the man found in the living room was Trejos Calvo Alvaro De Jesus, hereinafter referred to as D2; the man seen flushing dangerous drugs down the toilet will be sentenced tomorrow, D3; the fourth man throwing the drugs out of the window has not yet been committed to the High Court; the fourth, the only woman, Ms Garcia Aristizabal Maria Alejandra, hereof referred to as D5.

D1 and D2 pleaded guilty in Eastern Magistracy and were committed to the High Court for sentence on 1 April 2019. D5 pleaded not guilty and was found guilty on 21 November 2019 by a jury, with a majority of six to one.

Charges

Charge 1 - The 1st defendant, D1, pleaded guilty to a sole charge, Charge 1, that is, trafficking in dangerous drugs on 4 April 2018 outside Flat A, 5th Floor, Wing Shing Building. He was unlawfully trafficking in a dangerous drug, namely 8.64 grammes of a solid containing 6.26 grammes of cocaine. The 1st defendant was arrested and subdued outside of Flat A as he was leaving the premises. He immediately shouted loudly, “Police” in Spanish. This certainly alerted the occupants of Flat A, because there was much shouting heard inside and a refusal to open the door that the 1st defendant, D1, had shut. The police had to break open the door with a battering ram.

The drugs of Charge 1 were found in a secret compartment in D1’s waistband of his trousers when he was searched after his arrest. Under caution, D1 said he purchased the drugs inside Flat A from D2 who asked him to hide the drugs inside his trousers. He would buy drugs from Flat A and share the drugs with friends. He denied living at the premises and denied any knowledge of the other exhibits seized within, that is, the drugs of Charge 2. He did admit and accept he was in possession of 6.26 grammes of cocaine for the purposes of trafficking.

Charge 2 - Both D2 and D5 faced one charge only, Charge 2, and that is trafficking in dangerous drugs. The particulars of the charge are that the two defendants, with D3 and D4, on 4 April 2018 in Flat A, 5th Floor, Wing Shing Building, unlawfully trafficked in dangerous drugs, namely a total of 120 grammes of a solid containing 84.41 grammes of cocaine and 0.75 grammes of ecstasy and 3.83 grammes of cannabis in herbal form. I repeat, D2 pleaded guilty at the earliest opportunity and D5 pleaded not guilty, but was found guilty after trial.

After the police entered the premises, having broken down the door with a battering ram, they found D2 in the living room, D5 in the toilet with two other men disposing of pellets of cocaine. D3 was seen flushing drugs down the toilet, the police recovered some from the toilet bowl. D4 and D5 ran into the shower cubicle, opened a window each, put their arm out and threw pellets of cocaine. A police officer stationed below those windows watched the windows open, saw two hands and saw pellets fall down. She recovered seven in a rear alley, but in her evidence, did deduce that in fact more had been thrown out but not recovered.

The drugs of Charge 2 include many pellets of cocaine found in different locations in the premises. A resealable plastic transparent bag containing five tablets of ecstasy, and a bag containing 3.31 grammes of cannabis in herbal form, with the balance of 0.52 grammes of cannabis in herbal form found in a grinder and a pipe. The police also found a digital scale, many empty transparent resealable plastic bags often used for drug trafficking, and several wads of cash totalling over HK$62,000 and just over US$500. D2 had keys to the premises in his possession which later under caution he denied were seized from him. He also denied any knowledge of all exhibits found in the premises. He claimed to be visiting friends in Flat A at the material time.

When he pleaded guilty, he admitted that he was in possession of those drugs with others for the purposes of trafficking. D5 told the police that she was a visitor to Hong Kong, have been here for two weeks, and followed her boyfriend from Colombia here on a trip. They had been stayed in a hotel but her boyfriend suggested staying at Flat A because the rent was much cheaper. She denied all knowledge of the drugs found, denied knowledge of the paraphernalia commonly associated with drug trafficking, and also almost all the money found in different places totalling over $62,000 and US$500. It was put to D2 in her interview under caution that she had put her arm out of the window in the shower cubicle when the police raided. She did by what she said and what she physically demonstrated in the interview confirmed the allegation put to her.

She gave a weak and implausible explanation which was that she was brushing her teeth in the bathroom at the material time, but when the police burst in she was pushed towards the shower cubicle and had put her arm out as a result of the pushing. During the chaos in the bathroom, she did not notice drugs being put in the toilet bowl. She elected not to give evidence during the trial. It was suggested to the police that they had fabricated their evidence. D5 had not put her arm out of the window, nor had she disposed of any drugs out of the window. The exhibits officer was accused of fabricating his evidence with the officer stationed at the rear alley. It was suggested that there were no drugs thrown out, nor found in the rear alley. It was a question of credibility of witnesses and the majority of the jury believed that the defendant had thrown drugs out of the window, had knowledge of the drugs and was participating in a joint enterprise to traffic dangerous drugs with others.

Sentencing Guidelines

Sentencing guidelines for trafficking cocaine come from the Court of Appeal authority, R v Lau Tak Ming [1990] 2 HKLR 370. Although that authority dealt with heroin, the Court of Appeal since then held that the same guidelines would apply to trafficking cocaine. In Charge 1, the 1st defendant admitted trafficking in 6.26 grammes of cocaine, and in that authority, the Court of Appeal held that where up to 10 grammes is involved, an appropriate starting point would be between 2 to 5 years. Mathematically speaking, trafficking 6.26 grammes of cocaine will attract a starting point of 3 years and 11 months.

In Charge 2, the 2nd defendant admitted trafficking and the 5th defendant was found to be trafficking in 84.41 grammes of cocaine. In that authority, the Court of Appeal held that where between 50 to 200 grammes is involved, an appropriate starting point would be between 8 to 12 years. Mathematically speaking, trafficking in 84.41 grammes of cocaine will attract a starting point of 8 years and 11 months. In addition to the cocaine, there was some ecstasy and herbal cannabis, a cocktail of drugs. In the case of HKSAR v Yip Wai Yin, CACC 80/2003, the Court of Appeal there stated that for sentencing in different quantities of drugs, a combined approach would usually be correct in taking a global view.

This approach is often preferred and reduces the more realistic sentence. In the combined approach, the court looks at the overall quantity of drugs rather than the individual parcels. In the case of HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal there also held that the court should take the most serious drug and adjust it upwards for other drugs. The court there discussed three means of cross-checking whether the sentence was manifestly excessive. The first test was the absurdity test, the second test was the conversion test and the third test was a ratio test. I have considered the sentencing guidelines for cocaine, ecstasy and cannabis in a herbal form.

Essentially, the quantity of cannabis in herbal form would attract a very low sentence and could be considered a de minimis amount of drugs compared to the cocaine. I have considered the small quantity of ecstasy, 0.75 grammes, and if I were to convert it into cocaine, the starting point of 8 years and 11 months would remain unchanged. Therefore, I will take a starting point of 8 years and 11 months for Charge 2.

Mitigation

All defendants here are Colombians and in Hong Kong on a tourist visa, except D2 who submitted a claim for non‑refoulement protection when his tourist visa ran out in 2017. I have heard what counsel had to say about the defendants’ ages, family background, education levels, employment at home, and lastly, taken into account the guilty pleas of the 1st and 2nd defendants. I have heard that all three defendants have young children at home in Colombia. I have mitigation letters from the 1st and 2nd defendants expressing remorse. They all have clear records in Hong Kong, but that carries little weight when I consider the fact they are tourists. Counsel for defendants have said all they can say on their behalf.

As far as the 1st defendant is concerned, there is mitigation put forward that part of the drugs were for his own consumption. What is relevant is that he was here on a tourist visa and has no record of any drug consumption in Hong Kong to rely on. He had said to the police under caution in his interview, as pointed out to me by Mr Polson for the defendant, that he takes cocaine but is not a habitual consumer. He is essentially saying that he bought more than he needed and would share it with others when drinking and partying whilst in Hong Kong. He has not elected to come into the witness box and give evidence on this mitigation. I questioned why he would spend so much money on cocaine that he knew he would not consume himself. If he was just there to buy drugs and uninvolved with those selling drugs inside Flat A, why would he shout “Police” to alert those inside.

Moreover, when he was arrested, a urine test was conducted and it was negative for cocaine or other drug consumption. The Court of Appeal decision of HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 sets out the principles for a sentencing court when considering the issue of self‑consumption. I have considered in particular paragraph 34 of that authority. I have also considered HKSAR v Choi Chun Wo, CACC 273/2017. The Court of Appeal has there made it very clear that the defendant would only be entitled to a discount for self-consumption if the judge finds that all or a significant portion of the drugs were to be consumed by him or her. A significant portion was said in Wong Suet Hau to be a proportion that would make a difference in sentence.

Any sentencing court must be satisfied and what must be proved to the judge’s satisfaction is that all or a significant portion of the drugs were for self-consumption. If true, it may well make a difference to sentence. When considering whether this mitigation is true, the normal rules for determining the factual basis for sentence apply, and if it were to be accepted, it is unnecessary for the judge to specify the amount for self-consumption except in the broadest of terms. However, it is all too easy to claim a discount should be considered for self-consumption. Unless not challenged by the prosecution, other than an assertion from Mr Polson, here, there is no credible or reliable information that is material to this mitigation in order to cancel out the necessity of a Newton hearing.

For example, such material information would have been a positive urine test upon arrest or previous convictions for drug-related offences. I have considered what has been put forward in mitigation to support a credible claim for self‑consumption, and I do not find it enough to support or resolve a contested claim of self-consumption.

I am not satisfied that a proportion of the drugs were intended to be consumed by D1.

As far as D2 is concerned, when he was arrested he was a non-refoulement protection claimant. The Court of Appeal has endorsed an enhancement of sentence for this serious breach of trust and privilege by a person not normally entitled to be in Hong Kong, someone like the defendant who was here on the strength of a Form 8 only.

He said the promise of a job offer fell through so he decided to stay in Hong Kong and traffic drugs, but in order to stay here, he had to apply for non-refoulement protection. The fact he could not fill out the claim form with any grounds relevant to non-refoulement does not make this aggravating factor any less serious. This crime not only affects the community at large, but has an obvious impact on Hong Kong’s reputation. It was not committed by a Hong Kong resident, but by a person only permitted to remain at liberty within the community whilst his torture claim was being processed.

I have referred myself to the authority HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, and HKSAR v Ali Saif, CACC 309/2017, which endorses that enhancement. Having considered the facts of this case, the three types of drugs and the quantities involved, I find an enhancement of 4 months to be appropriate for this aggravating factor.

Defendants, please stand up. Charge 1, for the 1st defendant, I will take a starting point of 4 years. I understand that, mathematically speaking, the cocaine of Charge 1 should attract a starting point of 3 years and 11 months, but this defendant took it upon himself to shout loudly to deliberately alert the other inside the premises, giving them time and an opportunity to try and dispose of drugs. He did plead guilty at the earliest opportunity and is entitled to the full discount. After that discount is applied, the 1st defendant is sentenced to 2 years and 8 months for Charge 1.

Charge 2 for the 2nd and 5th defendants, I will take a starting point of 8 years and 11 months. For the 2nd defendant, I will increase that starting point to 9 years and 3 months to take into account the aggravating factor I highlighted above. The 2nd defendant pleaded guilty at the earliest opportunity and is entitled to the full discount. After that discount is applied, the 2nd defendant is sentenced to 6 years and 2 months.

The 5th defendant was found guilty after trial. There has been no mitigation that carries any weight to allow for any discount to that starting point. Therefore, the 5th defendant is sentenced to 8 years and 11 months.