HKSAR v. Lopez Bastidas Jean Carlos

DCCC 1178/2025

[2026] HKDC 1242

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1178 OF 2025

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REASONS FOR SENTENCE

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Introduction

1.The defendant (“D”) LOPEZ Bastidas Jean Carlos pleaded guilty to 3 Charges, all being “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.All 3 Charges occurred on the same day, i.e.12 March 2025. Charge 1 occurred at outside No. 42 Hennessy Road, Wanchai, involving 2.42 grammes of a solid containing 1.80 grammes of ketamine and 13.78 grammes of a solid containing 10.26 grammes of cocaine. Charge 2 occurred at Flat A, 8^th Floor, Sun Kai Mansion, Nos. 38-46 Hennessy Road, Wanchai, (“the Flat”) involving 4.10 grammes of a solid containing 1.62 grammes of cocaine, 2.19 grammes of a solid containing 0.30 gramme of 3,4-methylenedioxymethamphetamine (MDMA, commonly known as ecstasy) and 0.94 gramme of ketamine. Charge 3 occurred in the same premises, involving 3.13 grammes of a solid containing 1.97 grammes of cocaine, 5.44 grammes of a solid containing 3.91 grammes of MDMA, 0.10 gramme of cannabis in herbal form, 3.30 grammes of a solid containing 1.50 grammes of cocaine and 0.54 gramme of ketamine, 0.77 gramme of a solid containing 0.65 gramme of ketamine, 0.58 gramme of a solid containing 0.08 gramme of MDMA and 0.25 gramme of ketamine and 2 tablets containing 0.47 gramme of MDMA.

3.The total quantity of narcotics involved are:

cocaine : 15.35 gramme

MDMA : 4.76 gramme

ketamine : 4.18 gramme

cannabis : 0.10 gramme (in herbal form)

Facts of the case

4.The facts as admitted by D are simple and straight forward. At around 0140 hours on 12 March 2025 a party of police officers conducting anti-narcotics operation intercepted D who acted furtively at outside No. 42 Hennessy Road, Wanchai. Upon body search, the dangerous drugs as stated in Charge 1, a key and a mobile phone were found inside various pockets of the jeans D was wearing. D was arrested for “Trafficking in dangerous drugs”. He remained silent under caution (Charge 1).

5.D was taken to his residence (“the Flat”). At around 0147 hours police gained entry to the Flat by using the key found on D. At around 0150 hours a more thorough body search was conducted on D inside the Flat. The dangerous drugs stated in Charge 2 were found from the grey pants D was wearing underneath his jeans. He was further arrested for the same offence (Charge 2).

6.At around 0200 hours, the police searched the Flat under a search warrant. The dangerous drugs stated in Charge 3 were found at various locations inside the Flat. Cash HKD52,840, RMB100, EURO50 and USD100 and various packaging paraphernalia were also found near to the narcotics. D was further arrested for the same offence (Charge 3).

7.A further body search on D was conducted at around 0614 to 0620 hours. HKD18,937.10, USD100 and AUD50 were found inside the pockets of the jeans D was wearing. In a subsequent video-recorded interview, D admitted under caution that the key found on him belonged to him.

8.The sub-landlord confirmed that D rented the Flat at HKD9,000 per month since 1 April 2024. He paid the rent in cash.

9.The Government Chemist subsequently confirmed the nature and quantity of the narcotics as stated in the Charges.

10.The estimated street value of the narcotics found in Charge 1 was around HKD9,239.76, those in Charge 2 around HKD1,737.62 and those in Charge 3 around HKD3,495.02. The total street value of all the narcotics seized in this case is therefore around HKD14,472.40.

11.At all material times, D was a Form 8 recognizance holder.

12.D admits the narcotics seized in this case all belonged to him for trafficking purpose.

Backgrounds of D

13.D is 41 years old, born in Venezuela on 11 October 1984. He is single and had completed high school in Venezuela. He was unemployed at the time of his arrest for the present case in March 2025. He has 1 previous conviction for “Trafficking in DD” in May 2020 and was sentenced to 20 months imprisonment, and 4 days concurrent for “Breach of Condition of Stay”.

14.In mitigation, Mr Wright, representing D, realistically submitted that the only significant mitigating factor is D’s early guilty plea, whereas there are several aggravating factors involved, including the involvement of more than one kind of narcotics, D appears to be a direct seller, he is a Form 8 holder and that he has one previous similar conviction.

15.Having cited several relevant authorities^[1], Mr Wright submitted that the starting point for 15.35 grammes of cocaine should be about 5 years 6 months. Since the guidelines for MDMA and ketamine are the same, they could be treated together. The starting point for 8.94 (4.76 + 4.18) grammes of MDMA / ketamine should be 3 years 9 months. For 0.10 gramme of herbal cannabis, it is at the discretion of the Court, and normally would attract a fine.

16.Mr Wright referred to the 3 tests for cross checking. He submitted that the “absurdity test” would result in about 9 years 3 months plus aggravating features, which would be excessive. The “conversion test” would yield about 5 years 8 months, which is the same for “ratio test”.

17.For the aggravating factors, Mr Wright suggested a combined 12 months increase. The total combined starting point for this case is therefore 7 years 1 month. D is entitled to the 1/3 discount for his timely guilty plea. In the final analysis, Mr Wright suggested the final sentence should be 4 years 8 months 20 days.

Assessment of sentence

18.It is well established that the starting point for trafficking in up to 10 grammes of cocaine attracts a sentence of 2 to 5 years imprisonment if convicted after trial, and 5 to 8 years for trafficking between 10 and 50 grammes^[2] . For ketamine/MDMA^[3] , for trafficking in over 1 to 10 grammes, the starting point is 2 to 4 years’ imprisonment.

19.I bear in mind the comments by the Court of Appeal in HKSAR v Chan Yuk Leong^[4] that tariffs are not to be applied on a linear scale and that the court should not slavishly applying a strictly mathematical approach. I also bear in mind the approach in sentencing in this type of offences as laid down in HKSAR v Herry Jane Yusuph^[5] and HKSAR v Lee Ming Ho (李名豪)^[6].

20.This case involved trafficking in 4 types of narcotics, 15.35 grammes of cocaine, 4.76 grammes of MDMA, 4.18 grammes of ketamine and 0.10 grammes of herbal cannabis. I agree with Mr Wright that since the guidelines for MDMA and ketamine are the same, I will deal with them together, i.e., a total of 8.94 grammes. I also accept Mr Wright’s suggestion that the notional starting point for cocaine in this case should be 5 years 6 months and 3 years 9 months for MDMA / ketamine. The quantity of cannabis involved is very small, I will ignore it in assessing the final sentence.

21.I consider that given the quantity of narcotics involved, the “individual approach” would produce, even before considering the aggravating factors, a total sentence of 9 years 5 months, which, in all the circumstances, is too high. I consider that the “combined approach” is more appropriate^[7]. I will adopt cocaine as the dominant drugs for consideration, both in terms of potency and quantity reasons.

22.As to the 3 tests for cross checking on the sentence, in the recent case of HKSAR v Yau Kai Fung (邱啟峰)^[8], the CA, having reviewed the development of the principles involved on this issue, said :

“42. ….In light of the structured approach set out in Herry Jane Yusuph and the revised sentencing guidelines in Huang Ruifang (No 3), the absurdity and conversion tests no longer serve any useful or principled purpose as cross checks; the ratio test, while conceptually straightforward and consistent with the differentiated guidelines for hard and soft drugs, is to be used only in that secondary role.”

23.In the light of this recent Judgment by the CA, there is no need for me to apply the “absurdity test” or the “conversion test” for cross checking. The “ratio test”, according to Mr Wright, produced a starting point of 5 years 8 months. This is accepted by the prosecution and very much in line with my own calculation.

24.Trafficking in more than one kind of narcotics is an aggravating factor^[9]. As conceded by Mr Wright, I accept that the evidence shows that D was an actual trafficker rather than a courier, this is also an aggravating factor warranting an upward adjustment to the starting point^[10]. After taking these factors into consideration, I take 6 years as the starting point for the cocaine, adding to it 6 months for the MDMA and ketamine, so that the starting point becomes 6 years 6 months.

25.As indicated by the CA in Lee Ming Ho[11], previous similar conviction and being a Form 8 holder are considered to be separate and distinct aggravating factors. For these factors, I add another 6 months to the starting point, which becomes 7 years.

26.D pleaded guilty at the earliest opportunity, and is entitled to the 1/3 high watermark discount, reducing the sentence to 4 years 8 months.

27.Time and again the CA had stated that “Trafficking in dangerous drugs” is a very serious offence so that general deterrence takes precedent, the general background of D carries very little weight^[12]. There is no other mitigating factor available for consideration.

28.Although the narcotics in this case were seized from 3 different locations, and thus there are 3 separate Charges, it is obvious that all the narcotics came from the same source, all possessed by D at the same time for trafficking purposes. Therefore, I do not see the need to consider sentence for each Charge and then to apply the totality principle. I will adopt a global sentence and order that all to run concurrently.

29.For the 3 Charges D is convicted of, he is sentenced to 4 years 8 months for each Charge, all to be run concurrently, the total sentence is therefore 4 years 8 months.