HKSAR v. Chaparro Correa Elkin Shudian

HCCC 393/2019

[2020] HKCFI 326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 393 OF 2019

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

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

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

Transcript of the Audio Recording

of the Sentence in the above Case

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

COURT:

There was a raid and an arrest of five Colombian nationals on 4 April 2018 in premises in Queen’s Road West. The police had received intelligence and obtained a search warrant for Flat A, 5th Floor, Wing Shing Building, 355‑359 Queen’s Road West, Sai Ying Pun. It was suspected there were drug-trafficking activities conducted from these 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 case is that one of those three was flushing drugs down the toilet, whilst the other man and the woman threw drugs out of windows. An officer was stationed below that window and saw drugs thrown out of the window before recovering pellets that landed in the rear alley.

The man who was arrested first as he left the premises was Zapata Lopez Jhon Harold and has been in the previous case referred to as D1, the 1st defendant. The man found in the living room was Trejos Calvo Alvaro De Jesus, who has been referred to as the 2nd defendant. The man seen flushing dangerous drugs down the toilet has been referred to as the 3rd defendant, Aragon Pulgarin David Santiago. The fourth man throwing drugs out of the window is the defendant before me today, who pleaded guilty to one charge on 25 November this year in Eastern Magistracy and was committed to the High Court for sentence that same day. The only woman was Garcia Aristizabal Maria Alejandra, who was the 5th defendant.

The 1st, 2nd and 5th defendants were sentenced in HCCC 110 and 111/2019. The 5th defendant was sentenced after trial. The 3rd defendant, like the 1st and 2nd defendant, pleaded guilty at the earliest opportunity. The 3rd defendant was sentenced in HCCC 342/2019.

In mitigation, all five defendants arrested together are Colombians and were in Hong Kong on tourist visas except the 2nd defendant who submitted a claim for non-refoulement protection when his tourist visa ran out in 2017.

I have heard what counsel has to say on behalf of this defendant’s age, family background, education level, employment at home, and lastly, I take into account his guilty plea. I have heard he has three children at home in Colombia and is now divorced. I have heard an explanation that he committed these offences because he was in need of money for maintenance of his children. He has a clear record in Hong Kong but that carries little weight when I consider the fact he is a tourist from Colombia. Mr Ross has said all he can say on behalf of the defendant.

The sole charge here was Charge 2 in HCCC 110/2019. This defendant, who was referred to as the 4th defendant in the other co-defendants’ cases, was jointly charged with others with trafficking in dangerous drugs.

The Drugs of This Charge

The particulars of this charge are that this defendant with 2nd, 3rd and 5th defendant, 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, 0.75 grammes of ‘Ecstasy’ and 3.83 grammes of cannabis in herbal form.

After the police entered the premises, having broken down the door with a battering ram, they found the 2nd defendant in the living room and the 3rd, 4th and 5th defendants in the toilet disposing of cocaine. The 3rd defendant was trying to flush drugs down the toilet. The police recovered some from the toilet bowl. The 4th and 5th defendants were seen running into the shower cubicle, opening a window, each putting their arms out and throwing down pellets of cocaine. A police officer stationed below those windows watched the windows open, saw two hands and saw the pellets of drugs thrown down. She recovered seven in a rear alley but did deduce that in fact more had been thrown out but not recovered.

The drugs of this charge include many pellets of cocaine found in different locations in the premises, a resealable transparent plastic bag containing five tablets of ‘Ecstasy’ and a bag containing 3.31 grammes of cannabis in herbal form, with a 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 just over HK$62,000 and just over US$500.

Sentencing Guidelines

The 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 this charge, this defendant has admitted trafficking and 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 alone would attract a starting point of 8 years and 11 months.

In addition to the cocaine, there is 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 produces a 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 did discuss 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 the ratio test.

I have considered the sentencing guidelines for cocaine, ‘Ecstasy’ and cannabis in herbal form. Essentially, the quantity of cannabis in herbal form would attract a very low sentence and can be considered a de minimus 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 this charge.

Defendant, please stand up. You have pleaded guilty at the earliest opportunity and therefore entitled to the full discount. After that discount is applied and the sentence rounded down, you are sentenced to 5 years and 11 months’ imprisonment. Do you understand that sentence?

ACCUSED: Yes.