HKSAR v. Lopez Moreno Jhon Steven

DCCC 63/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 63 OF 2015

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REASONS FOR SENTENCE

1.Steven Jhon Lopez Moreno you have pleaded guilty to one charge of trafficking in 71.60 grammes of a solid containing 33.10 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1) and one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Chapter 115 (charge 2).

2.In summary you arrived in Hong Kong on the 26 November 2012 when you were permitted to stay as a visitor for 90 days.  In breach of your condition of stay you did not leave as required and had by the time of your arrest overstayed almost 21 months.

3.Your were arrested in the early hours of the 16 November last year having been found unconscious outside the Landmark in Central.  You were taken by ambulance to the Queen Mary Hospital where on examination a plastic bag containing four oval shaped solids of cocaine were found in your underpants. 

4.In passing sentence I have carefully considered everything said on your behalf by Ms Liang.  I take into account you have a clear record in Hong Kong.  This however carries little weight where the offender is a visitor who has overstayed and has committed serious crime.  The commission of offences by a visitor is an aggravating feature of sentence (see HKSAR v Aguilar Garcia Milner Javier CACC 485/2012).

5.The courts have equated for sentencing purposes cocaine with heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  In R v Lau Tak Ming [1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes is between 5 and 8 years imprisonment. 

6.I am satisfied the proper starting point after trial for 33.10 grammes of cocaine based on quantity alone is 6 years and 8 months imprisonment.  The offence being committed nearly two years after your arrival in Hong Kong I do not increase the sentence by reason of the fact you are a visitor. 

Own use

7.Ms Liang tells the court that although you are not a drug addict you do take cocaine from time to time.  Ms Liang says you were found unconscious having taken too much cocaine.  Miss Tse confirms that when you were taken to the hospital the result of the urine test showed you had taken cocaine that night. This lends support to the contention you do take cocaine. 

8.Ms Liang tells the court that you were to take the cocaine to a party where you would sell some and consume some.  I am told that having shaved off some cocaine from one of the four solids this particular solid could no longer be sold and was therefore kept for your own use.   

9.As indicated in court I am prepared to accept a small quantity of cocaine may have been for your own use but not as much as one solid.  Having taken your further instructions Ms Liang tells the court that you do not wish to give evidence to support your claim.  You have also confirmed in court that you do not wish to give evidence to support your claim.

10.In deciding how much weight should be attached to the fact a small quantity of the cocaine may have been for your own use I have considered the decision in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.

11.Taking into account the quantity of cocaine; the drugs were found on the street; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 5 months to one of 6 years and 3 months imprisonment. Giving you full credit for your plea of guilty you are convicted and sentenced to 4 years and 2 months imprisonment. 

Overstaying

12.Ms Liang refers the court to the decision of the Court of Appeal in HKSAR v Tiongson Patricia Manalad [2002] 2 HKLRD 681 where the court held that a starting point of 4½ months imprisonment was appropriate for overstaying just over 2½ years.  Miss Liang submits a sentence of 3 months or less would be appropriate for overstaying for 20 months.  I am satisfied the proper starting point after trial is 3 months imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 months imprisonment.

13.The two offences are entirely separate and distinct for which Miss Liang accepts consecutive sentences are appropriate.  I am satisfied a total sentence of 4 years and 4 months imprisonment properly reflects your culpability on the two charges.