COURT: The defendant pleaded guilty at committal on 12 July 2013 to three counts relating to dangerous drugs. The first count for trafficking related to 599.01 grammes of powder containing 413.97 grammes of cocaine hydrochloride. The second charge, also for trafficking, referred to a mixture of 1,210.86 grammes containing 880.22 grammes of cocaine hydrochloride. The third charge was a possession charge, namely 9.57 grammes of cannabis in herbal form.
The facts which had been admitted by the defendant at committal were confirmed before this court. On 20 October 2012, the defendant was intercepted by police on the street. The paper bag he was carrying was searched. The police found inside a plastic bag containing a quantity of dangerous drug which were later found to pertain to Charge 1. Under caution the defendant stated that the bag he was carrying contained cocaine, but he was going to give it to a friend.
As for the second and third charges, the defendant was taken to a residence for which a search warrant was executed and a key in the defendant’s possession was used to open the door. A Columbian woman was found in the premises, but she was later released by police on legal advice.
The police then conducted a house search and from a table inside the premises dangerous drugs were found. In addition, police found on the table a hydraulic jet, a metal plate, a metal cylinder with a metal rod attached, a metal sieve, two pairs of scissors, two electronic scales and two pieces of metal which were found later to contain traces of cocaine. From a cabinet inside the living room, further dangerous drugs were found. Some were in powder form, some were in solid cylindrical shapes. The police found various items in a cabinet, all containing traces of cocaine. Also, there were two dehumidifiers, a notebook marked with transaction records and two boxes of resealable plastic bags. On the floor next to the cabinet, police found a plastic bag containing shredded cloth which on analysis contained 97.12 grammes of a mixture containing 50.08 grammes of cocaine hydrochloride, together with a bucket, two cooking pans and a brush, all containing traces of cocaine. In the bedroom, police found a piece of plastic, a metal cylinder and five metal rods all bearing traces of cocaine. Cash of HK$23,000 was found in the living room and cash of HK$106,840 and US$3,200 were found in a bedroom.
Under caution, the defendant said that the drugs on the premises were cocaine and he had assisted his boss, to whom the equipment belonged, with the use of the hydraulic jet to press the cocaine into cylindrical shapes. He would then deliver the dangerous drugs in powder form or cylindrical form to others.
The defendant was a Columbian national who had arrived in Hong Kong on 17 February 2012 and had been permitted to remain until May 17, 2012. On arrival he rented premises for a year from 24 March 2012.
In a later video-recorded interview, the defendant said that he knew the dangerous drugs seized from him on the street was cocaine and he was planning to deliver the drug to a customer. He said he received from his boss $1,500 for each delivery, plus a monthly salary of $20,000. He had two bosses, one in Hong Kong and one in Columbia. On his bosses’ instruction he used the hydraulic jet to press the cocaine into cylindrical shapes and each piece of solid shape contained 9 grammes of cocaine powder. The seized scales, metal sieve and plastic bags were for packing the dangerous drugs. The money found on the premises was connected to the dangerous drugs as was the seized notebook.
The defendant was addicted to cannabis and the seized cannabis at the premises, the subject of the third charge, was, he told the police, for his own consumption.
The total cocaine seized inside the premises was examined and confirmed to be 1,210.86 grammes of a mixture containing 880.22 grammes of cocaine hydrochloride.
The cocaine seized on the street had an estimated retail value of $596,613, whereas the cocaine seized inside the premises had an estimated value of $1,206,000.
The defendant has a clear record in Hong Kong. His antecedent statement showed that he was a Columbian national. He was aged 33 and his date of birth is 7 July 1980. He had a high school education in Columbia and as was stated earlier, he came to Hong Kong in February 2012. It is clear that he intended to overstay as he rented the flat for a period of 12 months. He was arrested for these offences in October 2012.
In mitigation I was advised that he had two sonsaged 12 and 13, from a marriage in Columbia, who were in the care of their grandfather in Columbia and the defendant had been the sole breadwinner for those people. He has a common-law wife, Ms NATALIA Giraldo Osorio who produced in court a letter in support of the mitigation advanced for her husband. In that letter she advises the family circumstances, she describes them as poor. Her husband was the sole person responsible for the family livelihood. Her own father was at the final stages of diabetes and needed medicine and dialysis. Her husband lost his job because of his herniated discs. He had been working as a tractor driver. There was no work that was suitable in Columbia. Her husband needed surgery that their insurance would not cover and her mother also depended on the couple because she had no resources of her own.
She said that her husband was offered a job in Hong Kong as a chef. He took the opportunity to go and earn more money in Hong Kong. She said that in Hong Kong he was persuaded to work with drugs, but now her husband is behind bars and the real culprits are free. She says her husband is a good man and seeks leniency on his behalf, although she does not ask for his freedom, because she understands this crime is a serious one.
Medical records dating from January 2010 up to the time of his arrest were put before the court. They indicate the defendant is suffering from a number of degenerative diseases affecting his spine, but his main problem appears to be obesity, which exacerbates the conditions that he already has.
In mitigation I was advised that it was considered that people in Columbia do not understand the heavy sentences that are imposed for drug trafficking in Hong Kong and that some attempt should be made to redress this matter so that people know about it. Currently the defendant’s common-law wife says that she is trying to set up a campaign involving the media in Columbia so that more people in circumstances which are similar to hers and her husband’s do not fall by the wayside as couriers and drug mules. Various anecdotal reports relating to persons who have been arrested here have been put forward for publication in the media. I was asked to take this into account as a mitigating factor.
It was pointed out that the cannabis in Charge 3 was for the defendant’s own use and that in any event he was using it, allegedly, for medicinal purposes for his degenerative problems with his spine.
In terms of the Abdallah guidelines, the quantity of narcotic in this case comes into the category of 23 to 26 year range. I consider that the appropriate thing to do is to treat the drugs cumulatively in terms of Charges 1 and 2 and on that basis the total narcotic quantity is 1,294.19 grammes.[HKSAR and Abdallah [2009]2HKLRD437]
I take a starting point of 23 years. I give the defendant the full one-third discount for his plea of guilty. I do not take into account his medical ailments as a serious mitigating factor, however, I would request that Correctional Services check to see that he is being given the treatment that he needs, particularly in terms of his cataract.
I sentence the defendant on each charge to 15 years 4 months imprisonment for Charges 1 and 2. Those sentences will run concurrently.
In respect of the third charge, which is a matter for my discretion, I take a starting point of 3 months, impose a two month sentence and order that it is to run consecutively to the sentences on charges 1 and 2, making a total of 15 years and 6 months imprisonment.
Please refer to CACC174/2014 for the relevant appeal(s) to the Court of Appeal.