HKSAR v. Ruiz Valencia Julian Andres

HCMA 26/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 26 OF 2012

(ON APPEAL FROM ESCC NO. 4457 OF 2011)

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BETWEEN

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Before: Hon McWalters J in Court

Date of Hearing: 29 March and 2 April 2012

Date of Judgment: 2 April 2012

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JUDGMENT

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1.In this case the appellant pleaded guilty to possession of a very small amount of cocaine.

2.He is a Columbian who is working in China.  He is a person of good character with no previous convictions in his home country or in Hong Kong.  He has been to Hong Kong on a number of occasions since coming to China in August 2010.  He is twenty-nine years of age and as a result of his conviction he has lost his contract of employment in Guangzhou and immediately this case is over will have to return to his home country.  He is not a drug addict and so is unsuitable for DATC.  He has shown genuine remorse and regrets immensely the incident which has resulted in his current predicament.  He now wishes to put this incident behind him and return to his home country.

3.There is no doubt that the offence of possession of a dangerous drug especially a hard drug like cocaine is very serious indeed and regarded by the Hong Kong Courts as an offence which would normally carry a punishment of imprisonment.  However simple possession of dangerous drugs is also an offence where the court looks towards the rehabilitation of the offender.  But where that is not possible then a period of imprisonment is usually the norm. However the position of this appellant is somewhat different.  He is not a resident of Hong Kong; he is not a drug addict; he is a person of good character and the amount of cocaine of which he had possession was 0.07 grammes and was about a small as it would be possible to have.

4.Given all of these circumstances, I am persuaded that this is a case where I should extend some leniency to this appellant.  I give credit to him for his remorse and wish to provide him with an opportunity to put this behind him and get on with his life.  Were he a resident of Hong Kong I would consider a period of suspended imprisonment but he is not and I don’t think that is a proper option.

5.However nor do I wish to deprive him of the opportunity for a sentence which is geared more towards rehabilitation than punishment and so I believe the only option is to impose upon him the payment of a substantial fine.  I order that the appellant pay a fine of $30,000 and set aside the period of imprisonment imposed by the magistrate.  The fine will be paid from the bail money with the balance to be returned to the applicant.

Miss Hermina Ng SPP (Ag), of Department of Justice, for the respondent

Mr Ruiz Valencia Julian Andres, the applicant in person