CRIMINAL CASE NO. 383 OF 2010
In the early morning of 14 May this year, the police entered premises occupied by you, in possession of a search warrant.
They found inside there a vast quantity of cocaine, together with material for packaging. It was quite obvious that these premises were used for the storage of cocaine.
You were subsequently charged with an offence of trafficking in that quantity of cocaine. The particulars of the charge allege that you unlawfully trafficked in 693.65 grammes of a solid and powder containing 438.8 grammes of cocaine.
Your counsel has indicated that you pleaded guilty at the earliest opportunity. The information before me supports that submission. On 29 October in the Magistrates’ Court at Eastern you pleaded guilty to this charge and admitted the Summary of Facts which was advanced by the prosecution in support of it. Today before me you have confirmed your plea of guilty and the accuracy of that Summary of Facts.
On your behalf, Mr McNamara has provided some information as to your background. You are a Colombian national. You are aged 26. You are tertiary educated, and you came to Hong Kong in 2007. Subsequent to that, you applied for asylum, and that application was pending when this offence was committed.
As to the circumstances surrounding the commission of the offence, Mr McNamara tells me that being in dire financial circumstances, being unable to take up employment by reason of your Immigration status, you were preyed upon by others, and as a consequence agreed to engage in trafficking in this cocaine; as Mr McNamara points out, an all too familiar scenario. Nevertheless, as is readily conceded, the Court of Appeal in Hong Kong has made it abundantly clear that in those circumstances, very little by way of remission from the starting point for sentence is permissible, if any.
As to the other aspects of your background, I am told that you are the father of a 7-year-old child, who is currently being supported by your family in Colombia, and in the fullness of time, after your sentence has been served, it is your desire to return there to support her. I trust that you will be able to do that.
The Court of Appeal guidelines for sentencing for trafficking in cocaine are the same as those for trafficking in heroin. In this regard, the Court of Appeal decision in Attorney-General v Pedro Nel Rojas (1994) 1 HKC 342 and R v Lau Tak Ming and Others (1990) 2 HKLRD 370 apply.
The quantity of cocaine is slightly in excess of the lower range of bracket 5, which is 400 grammes to 600 grammes, wherein the Court of Appeal has recommended that starting points for sentence after trial of 15 to 20 years should be applied.
Given that you have pleaded guilty at the earliest opportunity, you are entitled to and will receive a full one‑third discount from the starting point which I adopt.
In the circumstances, given the quantity of drugs involved, a starting point slightly in excess of 15 years would mathematically be correct. Nevertheless, I am prepared, in the circumstances, to adopt a starting point of 15 years.
Discounting that by one-third for your timeous plea of guilty, a sentence of 10 years’ imprisonment is appropriate, and that is the sentence that I impose.