The defendant, Correa Jhon Eduar Quintero, pleaded guilty toward one count of trafficking in a dangerous drug. The charge concerns 95.01 grammes of cocaine. The defendant committed the offence on 7 January 2023 at a residential unit in North Point.
The Facts
At around 2.45 pm on 7 January 2023, police officers spotted the defendant acting furtively at Tsat Tsz Mui Road at the junction of Tin Chiu Street, North Point, and thus intercepted him for investigation.
Upon search, a resealable plastic bag containing 0.18 grammes of a solid containing 0.05 grammes of “Ecstasy” was found inside the defendant’s wallet. The defendant also had within cash of HK$2,200 and US$21.
At around 10.39 pm on the same day, police searched the defendant’s residence at Flat E, 19th floor, Yalford Building, 44-58 Tanner Road, North Point (“the Flat”), and found the following in the bathroom:
(a) Inside a plastic drawer placed on the sink, a green iron box containing three resealable plastic bags containing three plastic bags and a resealable plastic bag, collectively containing a total of 2.86 grammes of a solid containing 2.06 grammes of cocaine (E1).
(b) Inside the cabinet under the sink, a black recycled bag containing inter alia:
(1) A resealable plastic bag containing 0.66 grammes of a solid containing 0.41 grammes of cocaine (E2);
(2) A resealable plastic bag containing 2.81 grammes of a solid containing 2.24 grammes of cocaine (E3);
(3) A resealable plastic bag containing 35.4 grammes of a solid containing 25.8 grammes of cocaine (E4);
(4) A resealable plastic bag containing 80.9 grammes of a solid containing 64.5 grammes of cocaine (E5);
(5) Three electronic scales (E6 to E8);
(6) Two spoons (E9, E10);
(7) A bowl (E11);
(8) A strainer (E12);
(9) A pair of gloves (E13), and
(10) Two 27 cm x 14.5 cm transparent resealable plastic bags containing a total of 1200 unused 3 cm x 4 cm transparent resealable plastic bags (E14, E15).
The defendant was arrested for trafficking in a dangerous drug, but was not cautioned in the Flat in the absence of interpreter. A video-recorded interview was subsequently conducted with the defendant on 8 January 2023 in the presence of an interpreter. Under caution, the defendant stated inter alia the following:
(a) The “Ecstasy” found on him was for his own consumption.
(b) He has been a drug addict since he was 14 years old.
(c) In 2017, he entered Hong Kong as an asylum seeker.
(d) He was the tenant of the Flat paying a monthly rent of HK$10,000. He lived in the Flat with his wife and son, both of whom have left Hong Kong a month ago and no longer living in the Flat. He therefore was the sole key holder of the Flat at the time of the offence.
(e) He stored the cocaine (E1 to E5) inside the bathroom of the Flat and knew what they were.
(f) The cocaine in the Flat was sold to him at HK$600 per gramme by an unknown person, but he had not yet paid the person.
(g) He possessed the cocaine for reselling in Hong Kong at around HK$800 to HK$1,000 per gramme.
(h) He possessed the paraphernalia (E6 to E15) found in the Flat.
(i) He used the electronic scales (E6 to E8) for weighing cocaine.
(j) The spoons (E9, E10), the bowl (E11) and the strainer (E12) were used to remove impurities and mix the drugs for selling at a higher price.
Government chemist subsequently confirmed the narcotic contents of E1 to E5. The total drugs seized from the Flat was 122.63 grammes of a solid containing 95.01 grammes of cocaine.
The total estimated street value of E1-E5 was around HK$85,413.
The defendant accepts and admits that at all material times, he knowingly possessed all the cocaine seized for the purpose of unlawful trafficking.
Background of the Defendant
The defendant is aged around 40. He was born and educated up to high school in Columbia. He was married in 2021. His wife and son are now residing in Spain.
In 2017, the defendant was convicted of two counts of trafficking in a dangerous drug, and was sentenced to a total term of 34 months’ imprisonment in DCCC 462/2017.
Mitigation
I have considered the matters pleaded on the defendant’s behalf by Mr McGuinniety. I am told the defendant’s parents in Columbia both suffer from poor health, and his father in particular is quite unwell with cancer. Mr McGuinniety reckons the only relevant mitigating factor is the defendant’s plea of guilty. The defendant is now deeply remorseful and is looking forward to a drug-free life.
Mr McGuinniety submits given the tariff in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, the amount of cocaine in this case falls between 50 and 200 grammes, and this quantity should attract a sentence of between 8 to 12 years. He submits a sentence in a region of 9 years should be adopted.
Consideration
I have considered the nature and quantity of the dangerous drug involved, the facts of the case, the background information of the defendant, and all the matters urged on the defendant’s behalf and the sentencing authorities drawn to my attention.
I follow the six-step approach to sentencing in a HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
The first step is an assessment of the gravity of the offence by reference to the guideline cases, and identify the relevant guideline band applicable to the quantity of the cocaine involved. Applying the tariff in R v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, the quantity of 95.01 grammes of cocaine falls within the band for quantity between 50 and 200 grammes, that is 8 to 12 years. The initial starting point, however, is not to be determined solely by an arithmetic approach.
The second step is an assessment of the role and culpability of the defendant. It is trite law that the guidelines for trafficking in dangerous drugs are based on the courier or storekeepers. In the present case, the defendant bought the cocaine in question, kept them in the premises, weighed the cocaine, removed impurities and mixed the cocaine for reselling at a higher price. He bought the cocaine in question for reselling. He was not a courier. He was an operator of trafficking of cocaine for monetary gains caught for possession of the cocaine for the purpose of unlawful trafficking.
The third step is to identify where in the band of 8 to 12 years the defendant should come, bearing in mind the role and culpability of the defendant as mentioned. An initial starting point of 9 years and 9 months, that is 117 months, is appropriate. That is a figure before consideration of aggravating and mitigating factors.
The fourth step requires a consideration of the factors which bear on the notional sentence after trial. Two aggravating factors are present in this case.
(i) the defendant’s immigration status as a Form 8 recognizance holder is an aggravating factor in a drug trafficking case according to the Court of Appeal’s decision in HKSAR v Ali Saif [2018] 6 HKC 19. In HKSAR v Butt Muhammad Gulzar [2020] HKCA 597, it was emphasised that the enhancement for being a Form 8 recognizance holder must be substantial otherwise it has no deterrent effect.
(ii) the defendant has a previous conviction for drug
trafficking. In 2017, he was convicted of two counts of trafficking in a dangerous drug, and he was sentenced to a total term of 34 months’ imprisonment. The previous sentence failed to deter the defendant from reoffending. The aggravating effect of a previous conviction for trafficking in dangerous drugs has been recognised by the Court in Lau Tak Ming and another at page 386F, HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630 at paragraph 33 and Herry Jane Yusuph at paragraph 71.
In my judgment, (i) given the fact that the defendant committed the offence with his immigration status as a Form 8 recognizance holder, an enhancement of 6 months is appropriate; (ii) given the previous similar conviction of the defendant, the starting point should be further enhanced by 6 months.
The fifth step requires the sentencing court to identify and consider all the mitigating factors. The defendant is entitled to the customary one-third discount for his early plea, which would bring his sentence down to 7 years and 2 months, that is 86 months. Other than the guilty plea, there is no other effective mitigating factor that can further reduce the sentence.
For the sixth step, I have to observe the overall sentence passed to ensure that it is fair, just and balanced in all the circumstances of the offence and the offender. I remind myself that in a case like the present one, where more than one aggravating factor was involved, care has to be taken that the ultimate sentence is not out of proportion to the defendant’s overall criminality, see HKSAR v Islam Azharul [2020] 1 HKLRD 644.
In the end, I am satisfied that a sentence of 7 years and 2 months’ imprisonment, that is 86 months, is fair, just and balanced in all the circumstances of the offence and the defendant.
Sentence
For the reasons given, I sentence the defendant to 7 years and 2 months’ imprisonment, that is 86 months.