HKSAR v. Grisales Pelaez Arony Olinder

HCCC 277/2019

[2021] HKCFI 921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 277 OF 2019

________________________

________________________

________________________

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

________________________

Introduction

COURT: In this case, there are four defendants, D1 to D4, and a total of seven charges, Charges 1 to 7. The defendants pleaded guilty to their respective drug-related charges in the Magistrates’ Court and were committed to this court for sentence. For various reasons, the cases of the other defendants are adjourned and I now need only to deal with the sentence of D4.

The charges against D4 are as follows: Charge 6, possession of 1.31 grammes of a solid containing 0.87 grammes of cocaine. Charge 7, trafficking in 11,600 grammes of a solid containing 6,284 grammes of cocaine.

Summary of facts

The case was about four parcels, parcels 1 to 4, from Beijing. The sender of all of which was one “Hung Mong-mong”. Those parcels were delivered to Hong Kong separately between 25 and 28 February 2018. All of the aforesaid parcels contained cocaine. However, only parcel 4 (which contained the subject matter of Charge 7) concerns D4.

As far as D4 is concerned, briefly stated, on 19 March 2018 he was intercepted and arrested by Customs officers and was then taken to his residence at a flat in Tower 1 of Avignon for a house search. Although the flat was not rented in D4’s name, the monthly rental, HK$40,000, was paid by D3 in cash and he had the key to the premises.

As a result, Custom officers found cocaine which was the subject matter of Charge 6, some broken metal parts, one electronic scale and one bundle of zip lock bags. At the time of his arrest, D4 had on him cash of HK$8,920 and 1,000 Euros.

Besides, Customs officers also found inside the flat cash of HK$110,000, a key card with two keys and a tenancy invoice issued to D4 by “Cube Storage Solutions” situated in Lucky House, To Kwa Wan. Later investigation showed that D4 had rented a room at the Storage for the period between 27 February and 30 April 2018 and was issued with two keys and a key card. Moreover, D4 was captured by CCTV that he took a parcel to that room on 1 March 2018. As a result, Customs conducted a search of the room and found parcel 4 there. As aforesaid, parcel 4 contained cocaine which was the subject matter of Charge 7.

D4 now admits and accepts that he possessed the dangerous drugs found in the two aforesaid locations and also that the dangerous drug found at the storage in To Kwa Wan was for trafficking. He also admits that the cash found on him and the cash found in the Avignon flat were received and possessed by him as a result of drug trafficking.

Antecedents

D4 was a Spanish and is aged 41. He entered Hong Kong on 12 December 2017, departed on 6 March 2018, and re-entered on 8 March 2018 and was allowed to stay until 6 June 2018. He has a clear record in Hong Kong. He is said to have been unemployed and in receipt of social welfare in Spain. His urine test was positive for benzodiazepine and cocaine.

Sentence

For Charge 6 which is a possession charge involving 0.87 grammes of cocaine, having considered HKSAR v Mok Cho Tik, where the Court of Appeal said “the starting point for mere possession of a quantity of dangerous drug which a bona fide user would normally have in his possession should be in the range of 12 to 18 months”. I adopt 12 months’ imprisonment as the starting point, which is reduced to 9 months’ imprisonment for his timely plea.

Charge 7 is a charge of trafficking. According to Attorney General v Pedro Nel Rojas, the sentencing for trafficking in cocaine follows the sentencing tariff for trafficking in the same quantity of heroin. I note that in the recent judgment of HKSAR v Herry Jane Yusuph, the Court of Appeal clarifies that an arithmetical starting point, which is based on the quantity of the narcotic concerned, is only intended for low level traffickers who play the roles of couriers or storekeepers. For someone who is more involved and high above in the hierarchy, an upward adjustment would be required.

Charge 7 involves 6,284 grammes of cocaine narcotic and therefore according to the tariff laid down in HKSAR v Abdallah, the arithmetical starting point would be 26 years and 10 months’ imprisonment. However, in view of the large quantities of the dangerous drug concerned as well as the substantial amount of cash found in D4’s possession and the fact that he lived in the premises with a monthly rental of 40,000.

I am satisfied that I find that D4 was not just a courier or storekeeper. Based on what has been placed before me, it would also appear that D4 came to Hong Kong for the major purpose of participating in trafficking. On the other hand, I note that there is no evidence that he was involved in the importation of parcel 4 into Hong Kong.

For all the aggravating circumstances, I add 11 months to his sentence. Therefore, the after-trial starting point for Charge 7 becomes 27 years and 9 months’ imprisonment. After the one-third discount for his timely plea and rounding off, the sentence is reduced to 18½ years’ imprisonment.

I have read the bundle of mitigation document meticulously prepared and filed on behalf of D4. He expresses heartfelt apologies for the harm he has done to the society of Hong Kong. I note that D4’s wife has a physical deformity of her spine so that she is unable to work. The daughter is now studying in college and the son in secondary school. I have every sympathy of the plight that his family in Spain faces, both financially and emotionally, as a result of his incarceration in Hong Kong.

I am also alive to his physical disability and his consequential adjustment disorder resulting from a broken ankle and broken collarbone after a traffic accident in Spain many years ago. However, the offence of Charge 7 which D4 has committed is so serious that his family circumstances can hardly afford him a reduction of sentence, HKSAR v Wong Cheuk Lam, Attorney General v Yan Chun Fong.

Moreover, based on the material placed before me, it does not seem to me that his physical disability, adjustment disorder and depression are to such an extent as would cause him exceptional hardship in prison, Yip Kai Foon v HKSAR, Lau Tak Ming and Another.

In this regard, I note that D4 had managed to travel all the way from Spain to Hong Kong and lived here away from his family for some time. Moreover, I trust that the Correctional Services Department will provide suitable medical and professional care to D4 during his sentence and to cater for his conditions.

Apart from his timely plea, I can see no valid reason for reducing his sentences. Hopefully after today, D4 would be able to see if he could be repatriated to Spain to serve his sentence.

Lastly, in view of totality, I order that his two sentences are to run concurrently, thus D4 is sentenced to a total of 18½ years’ imprisonment.

(Proceedings from 12.05 pm to 12.57 pm not required)

I am sorry to have asked you to come back this is because of a minor mistake in relation to the sentence on Charge 6. I adopted the starting point of 12 months’ imprisonment. After one-third discount, it should be 8 months’ imprisonment rather than 9 and previously I think I said 9, which is a mistake. It should be 8.

But in any event it does not affect the overall sentence because the two sentences are to be run concurrently.