HKSAR v. HOLGUIN SANCHEZ DIANA MILENA

DCCC 842/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 842 OF 2014

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Reasons for Sentence

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1. The defendant, a Colombian overstayer, pleaded guilty before me to one count of trafficking in dangerous drugs - the drugs involved are 8.43 grammes of powder containing 4.18 grammes of cocaine; and another count of breach of condition of stay. She had overstayed for almost nine months at the time when she was arrested.

2. This is a case of police stop and search.  On the night in question, the defendant was stopped by a police officer in the sitting-out area at Lok Hing Lane, Central, and a search on her revealed the drugs in this case, which were contained in 13 transparent resealable plastic bags.

3. Under caution, the defendant said, “It is cocaine for my own consumption.”  At a later interview back at the police station, the defendant told the police that she was going to a party later on and would consume the drug together with her friends, and that her friends had contributed money to purchase the drugs.

4. The defendant, aged 36, is a person of previous good character.  She is single, but has a 9-year-old daughter.  She has written a rather long letter to court to plead for leniency.  In her letter she describes how she ended up in Hong Kong doing business on the internet because she felt unsafe in her own country due to debts she owed to others.  As far as the drugs are concerned, she told the court that a man gave her $10,000 to buy the drugs, and she went to Hollywood Road to buy the drugs, and she waited in the sitting-out area for instructions to go to a party.

5. The defence put forward this is a case of social trafficking.  First of all, in terms of harm caused to the community, there is no difference between social trafficking and commercial trafficking, but if the court accepts this is a case of social trafficking, that would mean some of the drugs would be consumed by the defendant herself.

6. First of all, I find the story put forward, that this is a case of social trafficking, rather dubious; but on the evidence before the court, I cannot rule out the possibility that some of the drugs was for the defendant’s own consumption.

7. There are sentencing guidelines for this type of drug trafficking.  For trafficking up to 10 grammes of cocaine, the terms for consideration are 2 to 5 years.  Looking at the amount the defendant was trafficking, i.e. 4.18 grammes, I will take 3 years and 3 months as a starting point, and firstly I take 6 months off for the fact that part of the drugs is for the defendant’s own consumption and that reduces it to 33 months (15% discount).  I will further reduce it by 1/3 to 22 months to reflect her plea, and I find nothing further to reduce the sentence.

8. For Charge 1, the defendant is sentenced to 22 months’ imprisonment.

9. For the 2nd charge of breach of condition of stay, I take 1½ months as a starting point, reduce to 1 month for her plea, and for that offence she is sentenced to 1 month’s imprisonment.

10. The two offences are different in nature, and I order both terms to run consecutively with each other.

11. The total term is one of 23 months’ imprisonment.