HKSAR v. Suarez Tellez Cristian Fernando

DCCC 1084/2022

[2023] HKDC 1095

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1084 OF 2022

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REASONS FOR SENTENCE

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A. Charges

1.The defendant (D)  pleaded guilty to:

Charge 1 of Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.

Charge 2 of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.Particulars of Charge 1 are that D, on 4 August 2022, at Room 1903, Garden View, No 1 Macdonnell Road, Mid-Levels, in Hong Kong, had in his possession a dangerous drug, namely 3.03 grammes (g)  of cannabis in herbal form.

3.Particulars of Charge 2 are that D, on the same day, at the same location, unlawfully trafficked in a dangerous drug, namely 17.35 g of a solid containing 12.76 g of cocaine.

B. Facts

4.D admitted the following facts.

5.On 4 August 2022, police officers mounted an anti-narcotic ambush operation on 19/F, Garden View, No 1 Macdonnell Road.

6.At around 1715, D was opening the door of Room 1903 with a red plastic bottle in his right hand. Police officers approached D and revealed their identities. D attempted to close the door but failed and he was subdued by the police officers.

7.There were 3.02 g of cannabis (E1)  and 1 metal grinder containing 0.01 g of cannabis in herbal form (E2)  inside the red plastic bottle. A piece of tissue wrapping 2 plastic bags containing a total of 0.93 g of a solid containing 0.6 g of cocaine (E3)  was tucking at the waistband of his underpants.

8.D possessed 1 mobile phone, cash of HK$604 and some cigarette papers. Upon arrest for possession of a dangerous drug, D said “I just smoke and nose”.

9.There was a female carrying a little boy in her arms inside Room 1903. Upon room search, the following items were found inside the bathroom: -

(a)  A tissue box containing 4 resealable plastic bags containing 16.42 g of solid containing 12.16 g of cocaine (E4); and

(b)  A plastic bag containing two silver electronic scales (E5 & 6)  and around 300 empty resealable plastic bags (E7).

10.A notebook bearing some records was found on the makeup table (E10).

11.Upon arrest for the offence of trafficking in a dangerous drug, D said “This is mine”.

12.D’s DNA was found on the said tissue box.

13.In a cautioned video-recorded interview and in the presence of a Spanish interpreter, D stated, inter alia, that concerning the drugs found on him: -

(a)  the cannabis (E1)  was for his own consumption;

(b)  the metal grinder (E2)  was for his consuming cannabis by way of smoking;

(c)  he bought the cannabis from a person in Chungking Mansions for HK$300;

(d)  he had been addicted to cannabis for many years; and

(e)  he had known the female in Room 1903 for many years.

14.Concerning the drugs found inside Room 1903, D stated that:

(a)  the cocaine in Room 1903 belonged to him;

(b)  He bought the 4 bags of cocaine (E4)  from an unknown male at Chungking Mansions for HK$10,000;

(c)  they were for his self-consumption and for selling to his friends for around HK$800 to HK$1,000 per bag;

(d)  The bag and scales (E5 and E6)  were used for his self-consumption of the drugs and distribution of the same for sale;

(e)  the large number of plastic bags (E7)  were for packing the drugs;

(f)  only he himself knew where the drugs were stored;

(g)  he made those records in E10 for a man; and

(h)  E4 to E7 and E10 belonged to him.

15.At all material times, D possessed E1 and E2; and he also possessed E3 and E4 for the purpose of unlawful trafficking.

C. Criminal record

16.D had a clear record at the time of the offences. Thereafter, on 21 September 2022, he was sentenced in 1 case for 4 charges – 2 of possession of a dangerous drug and 2 of assaulting a police officer. 4 months’ imprisonment in total was imposed on the former 2 charges.

D. D’s background

17.D is a 30-year-old Colombian and has been a Form 8 holder in Hong Kong since 2018. He is financially supported by his parents who were in Columbia.

E. Mitigation

18.The Defence submitted that for Charge 2, a starting point of about 63 months’ imprisonment is appropriate. The Prosecution agreed.

19.The Defence accepted that the sentence should be enhanced for D’s Form 8 holder status.

20.The Defence submitted that D is a long term drug user of cannabis and cocaine. Thus, the sentence should be discounted for less than 10% due to his self-consumption of an insignificant portion of the drugs in Charge 2. The Prosecution did not object.

21.The Defence also relied on HKSAR v Eftakhar Beg [2015] 5 HKC 427 and asked for a small deduction of sentence because D had had administrative detention for 6 months after his arrival in Hong Kong. The Defence referred to s67A(1A)  of the Criminal Procedures Ordinance which concerns reduction of sentence for custody under, among others, Part VII of the Immigration Ordinance. They conceded that the section does not apply to this case because there is no connection between D’s detention and the present offences. The Prosecution disagreed with deduction for that detention.

F. Sentence

22.For Charge 1, I adopt a starting point of 3 weeks’ imprisonment. It is reduced by 1/3 for D’s guilty plea, the only mitigating factor, to 2 weeks’ imprisonment.

23.For Charge 2, the sentencing guidelines are 5 to 8 years’ imprisonment for between 10 and 50 g of cocaine (HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437). I adopt a starting point of 63 months’ imprisonment. It is enhanced by 3 months for D’s Form 8 holder status to 66 months’ imprisonment.

24.It is reduced by 1/3 for his guilty plea to 44 months’ imprisonment.

25.Given D’s record of 2 offences of possession of a dangerous drug, his commission of the offence in Charge 1 and the parties’ agreement, I accept that an insignificant portion of the drugs in Charge 2 was for D’s self-consumption. I am of the view that a deduction of 2 months is appropriate. Thus the sentence is reduced to 42 months’ imprisonment.

26.Regarding D’s administrative detention, in HKSAR v Khan Aftab HCMA 34/2015, HKSAR v Khatun Halima HCMA 336/2016 and HKSAR v Godson Ugochukwu Okoro [2019] 2 HKLRD 451, the High Court declined to reduce the sentence for the defendants’ administrative detention because it was unconnected to the offences for which they were sentenced. Thus, for the same reason, I should not deduct the sentence on the basis of D’s administrative detention.

27.Therefore, D is sentenced to 42 months’ imprisonment for Charge 2.

28.The 2 charges are of the same nature and were committed on the same day at the same location. Thus, their sentence should run totally concurrently.

29.Accordingly, D is sentenced to 42 months’ imprisonment for all charges.