HKSAR v. Ramirez Cortazar George Michael

HCCC 343/2019

[2020] HKCFI 906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 343 OF 2019

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

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

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

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

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

COURT: The Charges and Pleas

The defendant faces two charges of trafficking in a dangerous drug. Charge 1 concerns 9.83 grammes of a solid containing 7.72 grammes of cocaine. Charge 2 concerns 351.45 grammes of a solid containing 284.73 grammes of cocaine and 0.03 gramme of heroin.

Both offences took place at two different premises in Wanchai, Hong Kong, on 26 July 2018. The defendant has pleaded guilty to Charges 1 and 2 in the court below and has been committed to the High Court for sentence.

The Facts

The facts admitted by the defendant reveal the following: Charge 1, on 26 July 2018, a team of police officers ambushed outside Flat E, 4th Floor, Empire Court, Nos 2‑4 Hysan Avenue, Wanchai, Hong Kong. They saw a female (hereinafter referred to as “the female”) coming out from Room A, that is location 1, of Flat E. The officers rushed into location 1 and found the defendant lying on a bed. The officers executed a search warrant, searched the room and seized the following:

On the shelf above the television:

(a) four plastic bags containing a total of 2.65 grammes of a solid containing 2.08 grammes of cocaine;

(b) a wallet containing cash of $40,700;

(c) a wallet containing cash of $44,400;

(d) two photographs, each depicting the defendant and the female.

Inside a drawer next to the television:

(a) two notebooks written with words and numbers;

(b) identification documents of the defendant and the female;

(c) tenancy agreements of Room A and Room D, Flat C2, 9th Floor, Block C, Great George Building, Nos 11‑19 Great George Street, Wanchai, location 2.

On a table next to the television:

(a) four keys; two of them were able to be used to gain access to location 1;

(b) 17 keys; two of them were able to be used to gain access to location 2.

Inside cabinets:

(a) 11 plastic bags containing a total of 7.18 grammes of a solid containing 5.64 grammes of cocaine;

(b) a hat containing cash of $52,470.

Arrested and cautioned in English, the defendant remained silent.

Charge 2

The defendant was escorted to location 2. The officers used the keys found and seized from location 1 to gain access to location 2 by opening the gate and door. No one was in location 2. The officers executed a search warrant. Upon search, the officers found and seized the following:

Inside the cabinet:

(a) one plastic bag containing 150 grammes of a solid containing 123 grammes of cocaine;

(b) one plastic bag containing 99.6 grammes of a solid containing 81.0 grammes of cocaine;

(c) 47 plastic bags containing 100.39 grammes of a solid containing 80.07 grammes of cocaine;

(d) one plastic bag containing 1.46 grammes of a solid containing 0.66 gramme of cocaine and 0.03 gramme of heroin;

(e) cash of $100,290.

Inside a drawer of the cabinet:

(a) 8,000 Japanese Yen, £50 and US$242;

(b) many empty resealable plastic bags.

On a desk in the bedroom:

(a) a notebook with numbers and English names;

(b) many empty resealable plastic bags.

In the toilet:

(a) one electronic scale with batteries which did not contain any dangerous drug;

(b) one electronic scale with a battery containing traces of cocaine;

(c) one dish containing traces of cocaine;

(d) many empty resealable plastic bags.

In two cautioned video-recorded interviews conducted with the assistance of a Spanish interpreter, the defendant said, inter alia:

(a) He came to Hong Kong on 24 December 2016.

(b) He started staying in Hong Kong on recognisance since February 2017.

(c) He did not know who rented location 1. He was arranged by some Colombians to live in location 1.

(d) He spent HK$2,500 to HK$3,000 a day.

(e) He was unemployed in Hong Kong.

(f) Some military people in Colombia killed his father in Colombia. Those people threatened him to sell cocaine in Hong Kong in exchange for not killing his family in Colombia, and those people would pay him sometimes weekly.

(g) Those Colombians would send him, by mobile phone messages, the addresses of the drug buyers. He would then leave the drugs at those addresses.

(h) He would keep all the money in location 2.

(i) All the cocaine was packaged by him.

(j) Each small bag of cocaine could be sold at HK$700.

(k) He was told to leave the money he earned in a flat. The money would then be collected by those people.

(l) He was not a drug addict but would consume cocaine occasionally for recreational purpose.

(m) The female was his girlfriend who knew nothing about the cocaine.

As in July 2018, in Hong Kong, the retail value of the cocaine in this case was estimated to be around HK$400,000.

The defendant admits that at the time he was unlawfully trafficking in the dangerous drugs in locations 1 and 2.

Mitigation

I am grateful to Mr Ross for his detailed written mitigation. I am told that the defendant is a Colombian national aged 28. He is single with no children but he has a Colombian girlfriend in Hong Kong. The defendant completed high school and a polytechnic course in installing car radios back in Colombia. He then worked part-time in his grandmother’s shop, installing radios.

He came to Hong Kong on 24 December 2016 and on a 90-day visa. One week after the expiry of his visa, he surrendered to Hong Kong authorities as an overstayer and made a non‑refoulement claim. The claim is still outstanding.

The defendant lived with his mother and an infant nephew in Colombia. The infant nephew missed the defendant since he left home in 2016. He often asks about the defendant. I am told the nephew is receiving some psychological counselling from professionals.

Mr Ross submits a mitigation letter written by the defendant. The defendant expresses his remorse in committing the offence, offers his apology for his wrongdoings and promises to turn a new leaf in the future. Mr Ross also reads out the contents of the mitigation letter written by the mother of the defendant.

The defendant has a clear record in Hong Kong. Mr Ross submits that the defendant was recruited by an unknown person via text message after he was placed on immigration recognisance. He was allowed to live in location 1 and was instructed by some persons via text message to pick and deliver dangerous drugs by order to third parties.

The defendant picked up the dangerous drugs from location 2. He took some small quantity of drugs to location 1 where he lived for his own drug taking, approximately 1 gramme per week. However, he would draw on his supply of dangerous drugs in location 1 if the order for delivery was small enough. He originally gained entry to location 1 and location 2 by keys left inside location 1.

The stock of dangerous drugs in location 2 was replenished for the defendant by unknown persons. Mr Ross submits that on the defendant’s instructions, he asked me to ignore the extract from the defendant’s cautioned interviews relating to being under duress to traffic dangerous drugs. Mr Ross submits that although drugs were found at two locations, the two offences should be regarded for sentencing purposes as representing one occasion of trafficking the total amount of drugs, citing HKSAR v Wan Lau Mei [2014] 4 HKC 75 in support. He submits that the total amount of drugs involved, ignoring the small quantity of heroin, is 292.45 grammes of cocaine.

The tariff sentence guideline for this amount of drug is 200 to 400 grammes attracting 12 to 15 years’ imprisonment. Arithmetically, Mr Ross suggests a starting point of 4 years and 3.6 months for Charge 1 and 13 years and 3 months for Charge 2. He submits that the starting point for the total amount of cocaine, that is 292.45 grammes, should be 13 years and 3 months.

Mr Ross reckons that the court has a discretion to enhance the sentence because the defendant is a Form 8 holder. He submits that there is no strict tariff for the quantum of any enhancement. Mr Ross submits that the defendant should be given a full one-third reduction for his timely plea and clear record in Hong Kong. He submits the discounted sentences without enhancement would be 2 years and 10 months for Charge 1 and 8 years and 11 months for Charge 2. Citing Wan Lau Mei, Mr Ross submits the sentences for Charge 1 and Charge 2 should be concurrent.

Consideration

I have considered the facts of the case, the background of the defendant and the detailed mitigation by Mr Ross. For sentencing purposes, I would ignore the defendant’s claim that he committed the offences under duress from a Colombian militia. I would also ignore his claim that he trafficked the cocaine for a Colombian militia. In my judgment, it is just part and parcel of the same assertion that the defendant committed the offences under duress from a Colombian militia.

Charge 1 concerns 7.72 grammes of cocaine. Applying the tariffs as set down in R v Lau Tak Ming & Others [1990] 2 HKLR 370 and Attorney General v Rojas [1994] 1 HKC 342, an initial starting point of 4 years and 3 months is appropriate.

In my judgment, the fact that the defendant would consume approximately 1 gramme of cocaine found at location 1 per week does not impact on the sentence for Charge 1 as the portion of cocaine that the defendant would use for his own consumption did not represent a significant portion of the cocaine found at location 1. In any event, Mr Ross accepts that the urine test result of the defendant was negative.

In my judgment, the fact that the defendant’s status as a Form 8 holder is an aggravating factor (see HKSAR v Londono Montealegre [2017] 1 HKLRD 450; [2016] HKCU 3245). An enhancement of 3 months is called for. The starting point after the enhancement is 4½ years.

The defendant is entitled to one-third reduction for his timely plea and previous clear record in Hong Kong. That would bring his sentence down to 3 years.

On Charge 2, given the quantities of cocaine and heroin involved, that is 284.73 grammes and 0.03 gramme of heroin, applying the tariff guideline, an initial starting point of 13 years and 3 months is appropriate.

For sentencing purposes, I would ignore the fact that Charge 2 concerns the trafficking of more than one kind of drug as the quantity of heroin was insignificant, only 0.03 gramme was involved. The defendant’s status as a Form 8 holder aggravated the seriousness of Charge 2. In my judgment, an enhancement of 9 months is appropriate. The starting point after the enhancement is 14 years.

The defendant is entitled to one-third reduction for his timely plea and previous clear record in Hong Kong. That would bring his sentence down to 9 years and 4 months.

For the reasons given, on Charge 1, I sentence the defendant to 3 years’ imprisonment. On Charge 2, I sentence the defendant to 9 years and 4 months’ imprisonment. Bearing in mind the fact that the drugs were found at two locations and the reasons behind, I agree with Mr Ross that the two charges represent one occasion of trafficking the total amount of drugs. In line with the principles in Wan Lau Mei and bearing in mind the total quantity of the drugs and the defendant’s status as a Form 8 holder, a total sentence of 9 years and 4 months should accurately reflect the overall criminality of the case. I order that the sentences for Charge 1 and Charge 2 are to run concurrently.