HKSAR v. Rico Paul Jason Lopez

CACC 228/2024 [2025] HKCA 1026

On appeal from [2025] HKCFI 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 228 OF 2024

(ON APPEAL FROM HCCC NO 172 OF 2024)

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J U D G M E N T

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1.On 8 October 2024, the applicant was sentenced to 8 years and 4 months’ imprisonment by Anna Lai J (the judge), following his guilty plea in the Magistrates’ Court to a single count of conspiracy to traffic in a dangerous drug. It was alleged that the applicant conspired together with other persons unknown to unlawfully traffic in cocaine between 28 July and 16 September 2022[1].

2.On 28 October 2024, the applicant filed a notice of application for leave to appeal against sentence, complaining that his sentence was excessive.

3.On 20 February 2025, Ms Virgina Lau, for the applicant, filed perfected grounds of appeal against sentence, advancing a sole ground that the judge failed to consider and give a further discount for the mitigating factor that, but for the applicant’s own admissions, the prosecution would not have known the details of the conspiracy. Ms Lau argued that, for this factor, the applicant should have received a reduction of three months from the starting point.

The summary of facts

4.The summary of facts outlined to the judge and admitted by the applicant was as follows.[2] At about 1:40 am on 16 September 2022, the applicant was intercepted by police officers while parking a vehicle outside No. 13 Prat Avenue, Tsim Sha Tsui. The police searched him and found a tissue paper containing two transparent resealable plastic bags of cocaine inside his trouser pocket. They also found, inside his black sling bag, two large transparent resealable plastic bags containing 56 resealable plastic bags of cocaine, as well as two mobile telephones and HK$33,129.30 in cash. The police searched the vehicle, and found inside the centre console two transparent resealable plastic bags, containing 13 plastic bags of cocaine and HK$29,690 in cash.

5.In a video recorded interview, the applicant admitted he knew the drugs seized were cocaine. He stated that in August 2022, he borrowed the vehicle from a friend when he began trafficking in cocaine. He claimed that his friend referred him to two bosses, who arranged for the cocaine to be delivered to him at various locations in Kowloon. The cocaine had already been packed in smaller resealable bags at the time of his collection. He stated that he would contact customers by phone, deliver the cocaine using the vehicle, and collect cash payments upon delivery. He sold each bag of cocaine for around HK$400 to HK$500, earning HK$100 per bag, with the remaining proceeds given to his bosses. He admitted that he was distributing cocaine to a customer at the time of his arrest, and that the cash found was the proceeds from the sale. He also stated that his mobile telephone (Exhibit 11) contained records of the sale of cocaine.

6.A total of 71 plastic bags containing cocaine were seized, with quantities ranging from 0.68 gramme in three bags to 7.95 grammes in 26 bags, and with an estimated street value of HK$860 per gramme in powder form and HK$1,465 per gramme in crack form.

7.Message records on the mobile telephone (Exhibit 11) revealed that the applicant had trafficked 965 bags of cocaine, estimated to contain at least 218.73 grammes in total[3], during the conspiracy period.

The mitigation

8.The applicant, a Spanish national who has resided in Hong Kong since the age of six or seven, was 37 years old at the time of sentencing. He was educated up to Form 3 level and had one previous criminal conviction in Hong Kong for a summary offence in 2019, for which he was fined HK$4,000[4]. He had been working as a hair stylist, earning around HK$15,000 per month before his income was reduced to HK$8,000 - HK$9,000 due to the pandemic. Prior to his arrest, he had been residing with his girlfriend and paying a monthly rent of HK$11,000.

9.In mitigation, defence counsel submitted that the applicant committed the present offence due to financial difficulties and was induced by others to act as a courier to deliver cocaine to customers for a reward.

10.Defence counsel referred to HKSAR v Tsang Ka Wing[5]and urged the judge to determine the appropriate starting point for the offence of conspiracy to traffic in an unspecified quantity of drugs based on the lesser of the two purities of cocaine identified by the government chemist, namely 0.226 gramme per bag. This resulted in a total of 218 grammes for 965 bags. Defence counsel submitted that a slight adjustment should be made in the applicant’s favour, given possible variation or uncertainty in his account. Defence counsel further submitted that, but for the applicant’s admissions, the prosecution would not have been aware of the details of the conspiracy. It was suggested that the judge should consider reducing the total quantity of cocaine from 218 to 200 grammes and adopt a starting point of 12 years’ imprisonment.[6]

The reasons for sentence

11.In sentencing the applicant, the judge cited the relevant authorities[7] and bore in mind the seriousness of the conspiratorial enterprise, which involved multiple transactions and continued until the applicant’s arrest. She noted that the bags of drugs trafficked during the offence period contained an estimated total of not less than 218.73 grammes of cocaine, and adopted a notional starting point of 12 years and 3 months’ imprisonment[8].

12.Whilst accepting the applicant’s role as a courier, the judge highlighted his involvement in delivering the cocaine, collecting cash payments from customers, and keeping records on his mobile telephone. Having regard to his role and the scale of the conspiracy, in which over 900 packets of cocaine were delivered to various customers over a period of around 7 weeks, the judge enhanced the starting point by 3 months, to 12 years and 6 months’ imprisonment.

13.The judge noted that the applicant pleaded guilty at the earliest opportunity but found no other mitigating factors warranting a further reduction to his sentence. After applying a one third discount for his guilty plea, the judge sentenced the applicant to 8 years and 4 months’ imprisonment.

The leave application

14.The ground of appeal against sentence is not reasonably arguable. Whilst the applicant made admissions of his involvement in the conspiracy, the evidence against him was overwhelming. He was apprehended in the process of selling the drugs and collecting payments from customers. His mobile telephone contained records of numerous drug transactions over a 7-week period, which were extremely damning and demonstrated he was actively involved in trafficking cocaine. Putting aside the applicant’s admissions, there was a strong case against him as an active seller of the drugs during this period. His role and culpability could have been visited by a greater enhancement of the 3 months he received.

15.For the reasons stated, the application for leave to appeal against sentence is refused.

16.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Marcus Lee, SPP, of Department of Justice, for the respondent

Ms Virginia Lau, instructed by Chan Ching Man & Co, assigned by the Director of Legal Aid, for the applicant