HKSAR v. ACOSTA CASTRO ERIK ALEJANDRO

DCCC 279/2025

[2026] HKDC 155

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 279 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 4 charges:

(1)  trafficking in a dangerous drugs (“Charge 1”),

(2)  possession of a part 1 poison (“Charge 2”),

(3)  resisting police officers (“Charge 3”)  and

(4)  possession of offensive weapons (“Charge 4”).

Brief Facts

2.  Full particulars of the offence are set out in the summary of facts admitted by the defendant today.  In summary, at around 11:50pm on 4 July 2024, police officers were patrolling in Central and intercepted the defendant. Upon search, dangerous drugs, including 0.44 grammes of cocaine, 1 paper straw containing traces of cocaine and 0.01 grammes of MDMA were found (collectively refer to as “Exhibit 1”).

3.  The police arrested the defendant. While escorting the defendant to a police vehicle, the defendant struggled fiercely and fled. The police pursued and subdued the defendant approximately 10 meters away.

4.  The defendant was then taken to the police station. Upon further search on the defendant, dangerous drugs were found under the defendant’s underwear. Those dangerous drugs included:

(1)  1 plastic bag containing 7.97 grammes of cocaine (“Exhibit 2”),

(2)  1 plastic bag containing 7.13 grammes of cocaine (“Exhibit 3”),

(3)  1 plastic bag containing many plastic bags containing a total of 0.52 grammes of cocaine, 2.96 grammes of ketamine, 1.47 grammes of MDMA, traces of lysergide, and 4 blue tablets containing sildenafil, which is a part 1 poison (“Exhibit 4”).

5.  Besides, a knife with a blade length of 8 cm concealed at the defendant’s belt buckle was found from the defendant.

6.  In a subsequent video recorded cautioned interview, the defendant claimed that he possessed Exhibit 1 for self-consumption.

7.  In a gist, the following dangerous drugs were found from the defendant: (1)16.06 grammes of cocaine, (2)  2.96 grammes of ketamine, (3)  1.48 grammes of MDMA, and (4)  traces of lysergide.

8.  The estimated street value of all the dangerous drugs was about $13,493.70.

Background and mitigation of the defendant

9.  The defendant was born in Mexico in 1997 and was 26 years old at the time of his arrest. He came to Hong Kong in 2021 and has had the financial support of his mother throughout. At the time of offence, he was a Form-8 holder. By now, his non-refoulement claim was unsuccessful.

10.  Ms Alva, counsel for the defendant, submitted that the defendant had already been remanded for 18 months. During that period of time, he enrolled in and taken biblical studies, obtaining 3 certificates of completion so far. He had also reflected and realized that drug consumption may end up killing him, and determined to continue living “clean” in the future.

11.  The defendant is a person of clear record.

Charge 1

12.  According to HKSAR v Huang Ruifang[1], the starting point of trafficking in cocaine between 10 to 50 grammes is 5 to 8 years’ imprisonment. Upon a pure mathematical approach, starting point of trafficking in 16.06 grammes of cocaine is 5 years and 5 months’ imprisonment.

13.  According to SJ v Hii Siew Cheng[2], the starting point of trafficking in ketamine or MDMA between 1 to 10 grammes is 2 to 4 years imprisonment. Upon a pure mathematical approach, starting point of trafficking in 2.96 grammes of ketamine is 2 years and 5 months’ imprisonment, and starting point of trafficking in 1.48 grammes of MDMA is 2 years and 1 month’s imprisonment.

14.  For charge 1, Ms Alva me referred to the 6 steps approach in HKSAR v Herry Jane Yasuph[3]. In order to arrive at a just and balanced sentence, Ms Alva calculated the notional starting point by using the individual approach and the combined approach.

15.  Under the individual approach, the notional starting point would be 9 years and 11 months’ imprisonment. Ms Alva asked me to adopt the combined approach for the purpose of sentence. She submitted that among the 3 different kind of dangerous drugs involved, cocaine should be considered as the base drug, and prepared a calculation in her written mitigation by reference to the conversion test, absurdity test and the ratio test and arrived at the following result:

(1)  by using the conversion test, the notional starting point would be 6 years and 1 month’s imprisonment,

(2)  by using the absurdity test, the notional starting point would be 5 years and 9 months’ imprisonment, and

(3)  by using the ratio test, the notional starting point would be 5 years and 4 months’ imprisonment.

16.  In the written mitigation, Ms Alva said on behalf of the defendant that among the seized drugs, a significant portion were for self-consumption.  In the circumstance, she asked me to discount the sentence by 10% to 25% of the basic starting point.

Charge 2

17.  For Charge 2, Ms Alva submitted that the 4 Viagra tablets was used by the defendant for erectile dysfunction as his addiction affected his sexual performance.

Charge 3

18.  For Charge 3, Ms Alva submitted that the defendant was under the influence of drugs at the material time when he was intercepted and arrested.

Charge 4

19.  For charge 4, Ms Alva submitted that there are no guideline sentence for this kind of offence but emphasized that despite the blade is 8 cm long, only about the 3 cm top part is sharp enough for cutting. The defendant would mainly use it to open beer bottle.

Sentence

Charge 1

20.  For the sentence of trafficking in dangerous drugs involving different types of drugs, I adopt the “combined approach” following HKSAR v Yip Wai Yin and anor[4] . Obviously, among the dangerous drugs involved in this case, I will adopt cocaine as the base drugs in view of its potency and quantity involved.

21.  On a strictly mathematical approach, a starting point of 5 years and 5 months would be appropriate for trafficking in 16.06 grammes of cocaine. Having considered the calculation made by Ms Alva in her written mitigation, I adopt 5 years and 5 months imprisonment as the starting point and increase the sentence by 1 months’ imprisonment to 5 years and 6 months’ imprisonment as the defendant also trafficking in ketamine and MDMA.

22.  Moreover, the sentence should be enhanced as the defendant was a Form 8 holder at the time of offence.  In HKSAR v Ali Saif[5], the Court of Appeal stated that for the offence of trafficking in dangerous drugs, the level of enhancement for this factor should not be less than 6 months:-

“However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants.” (para 17)

23.  I decide to enhance the sentence of charge 1 for 6 months to 6 years’ imprisonment.

24.  I consider that a significant proportion of the seized dangerous drugs were for defendant’s “self-consumption” is a bare assertion unsupported by confirmatory evidence despite the defendant had alleged that Exhibit 1 (containing only 0.44 grammes of cocaine and 0.01 grammes of MDMA)  were for his consumption in his video recorded interview.  I consider that a Newton hearing would be required, but Ms Alva decided not pursue for one.

25.  In fact, a urine drug test was conducted after the defendant was discharged from hospital after he was arrest. The result of the test was that: negative finding on amphetamine, benzodiazepine, cocaine and opiate, but positive finding only on cannabis. In other words, the urine test result does not support that the defendant was abusing cocaine, ketamine or MDMA at the material time.

26.  As such, there is no evidence before me that the defendant would consume a significant proportion of the seized dangerous drugs.  Even if it might be that the defendant would have a small amount of the cocaine, ketamine or MDMA for himself, no doubt, possession of a dangerous drug itself carries with it a term of imprisonment and there is also the latent risk factor. Therefore, in this case, I do not consider this self-consumption claim would meaningfully or materially affect the sentence and I do not see any basis for reduction because of this claim (see: HKSAR v Liu Ming Sze[6] ).

27.  The defendant entered a timely plea and is therefore entitled to a one-third discount of sentence. There is no other valid mitigating factor which justifies a further reduction of sentence.

28.  Therefore, for charge 1, the defendant is sentenced to 4 years’ imprisonment.

Charge 2

29.  For charge 2, the usual sentence is a fine. However, Ms Alva submitted that the defendant could not afford any. In the circumstance, I decide to adopt 3 days’ imprisonment as the starting point and reduce it to 2 days’ imprisonment upon his guilty plea.

Charge 3

30.  Resisting a police officer is a serious offence. The defendant sustained injuries is not a mitigating factor because the police officers were required to use some force to subdue him at the material time. I adopt 1.5 months’ imprisonment as the starting point and reduce the sentence to 1 month’s imprisonment in view of the guilty plea of the defendant.

Charge 4

31.  In HKSAR v Ip Chi Wang[7], the Court observed, in upholding a sentence of 9 months’ imprisonment after trial for possession of an offensive weapon:

“…the magistrate in this case in any event and quite properly on the evidence, found not only was the knife a weapon by its own nature, but that also the circumstances of the appellant carrying it in a concealed manner in a public place were such as to cause the magistrate to properly infer that the appellant possessed the knife to use it or in some way deal with it for the purpose of some future criminal activity.” (para 17)

32.  I examined the knife and find that, as submitted by Ms Alva, the sharp part of the knife was not as long as 8 cm. But at the material time, the knife was concealed at the defendant’s belt buckle. I decide to adopt 6 months’ imprisonment as the starting point for charge 4 and reduce it to 4 months’ imprisonment upon the guilty plea of the defendant.

Totality

33.  Taking into account the totality principle:-

(1)  the sentence of charges 1 and 2 are to be run concurrently;

(2)  the sentence of charges 3 and 4 are to be run concurrently;

(3)  2 months of charges 3 and 4 to be run consecutively from charges 1 and 2.

34.  Total sentence is therefore 4 years and 2 months’ imprisonment.