HKSAR v. CAROLINA VALENCIA NAVARRO

DCCC 1163/2018

[2019] HKDC 1245

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1163 OF 2018

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REASONS FOR SENTENCE

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Introduction

1.  The defendant has indicated her guilty pleas in the District Court as early as in 14 May.  Today, she pleaded guilty before me to a total of 4 charges, namely, one count of trafficking in a dangerous drug (1^st Charge), one count of possession of a dangerous drug (2^nd Charge), one count of Possession of apparatuses fit and intended for the inhalation of dangerous drugs (3^rd Charge) and finally, another count of breach of condition of stay (4^th Charge).

2.  The dangerous drugs concerned in the 1^st Charge is a plastic bag containing 33.2 grammes of a solid containing 28.1 grammes of cocaine.

3.  The dangerous drugs concerned in the 2^nd Charge is 14.3 grammes of cannabis in herbal form.

Facts

4.  Briefly stated, the arrest of the defendant was as a result of an operation by the Customs & Excise Department.  Upon information, at about 8:30 pm on 2 March 2018, a female customs officer CO 12166 (“PW1”) together with other Customs Officers entered Room 836 of the Horizons Suite Hotel situated in Ma On Shan with a key card and found the defendant inside the bedroom of the hotel room.  Upon search, a white glass inhaler and a golden glass inhaler (“the inhaling devices”) with traces of cannabis were found on top of a safe inside a wardrobe in the bedroom.  Another male Customs Officer (“PW2”) then opened the safe with the password provided by the defendant.  A red box containing suspected cocaine and a metal box containing suspected cannabis were subsequently found inside the safe.  PW1 then arrested and cautioned the defendant.  Inside the safe, the following cash were found:-

(1) a wallet containing banknotes of HK$1,210, CNY300 and JYP10,000;

(2) a white envelope containing banknotes of HK$30,000; and

(3) a pink envelope containing banknotes of US$6,700.

5.  A key card of the hotel room was found on the desk in the bedroom.  An electronic scale with batteries and two bundles of ziplock bags were found on the desk at the living room of the hotel room.

6.  The street value of the cocaine and cannabis was around HK$33,498.80 and HK$3,889.60 respectively at the material time.

7.  The defendant entered Hong Kong on 31 December 2016 and was permitted to remain the Hong Kong as a visitor until 31 March 2017.

Criminal record and background of the defendant

8.  The defendant was a Colombian national and was born on 12 January 1990 making her now 29 years of age.  She has a clear record in Hong Kong.  Urine test report conducted on the defendant’s urine specimens on 6 March 2018 revealed positive result to cannabis and cocaine.

Mitigations

9.  In mitigation, Mr Bullett, counsel for the defendant, said the defendant had been teaching young children in Colombia.  He submitted to the court two mitigation letters written by the defendant and also defendant’s mother in Spanish with English translations provided.  I am not going to refer to the details of the letters.  In her letter, the defendant’s mother asks for benevolence for her daughter as she is her only daughter and she also supports her for living.  The defendant herself also asks the court to be lenient to her as she has to take care of her mother.  She talks about a tragic accident in 2010 in which she and 9 of her friends jumped from height to the pool for fun but 8 people ended up fell onto the pavement including the defendant.  6 people died instantly but the defendant luckily survived though she sustained serious injuries and broke her ankles and legs necessitating 39 days in hospitals and 11 operations.  She suffered intense pains and as a result, she used both cannabis and cocaine to lessen the pains on her wounds.  Medical evidence in the form of doctors’ certificates issued by the hospitals in Colombia are also produced.

10.  For the trafficking charge, Mr Bullett suggested a starting point of about 6 years according to the sentencing tariff.

11.  As for the possession charge, Mr Bullet cited HKSAR v Castano Arango Jose Reinel CACC 174/2014 and submitted that a fine is appropriate for possession of this quantity of cannabis and the sentence in default of the payment of fine should run concurrently with the other imprisonment terms.

12.  As for the possession of drug apparatus, in the absence of aggravating circumstance, Mr Bullet submitted that a 3 months’ imprisonment after plea is appropriate and the sentence should also be run concurrently with the trafficking charge. (see HKSAR v Eriksson Richard Wilhelm CACC 454/2002, at para. 13 and HKSAR v Lee Yuen Ping Maggie CACC 242/2000, at para. 8)

13.  Finally, for the overstaying charge, Mr Bullet submitted that perhaps one month imprisonment is sufficient to dispose of the matter.

Sentencing Considerations

14.  In sentencing this defendant, I have taken into account the facts of the case, the background of the defendant and the mitigations put forward by the defence counsel and the authorities submitted.  Trafficking in a dangerous drug is a very serious offence in Hong Kong.  The maximum sentence is life imprisonment and a fine of $5,000,000.  The defendant is convicted of a serious drug trafficking offence involving no less than 28.1 grammes of cocaine.  I have sympathy for the mother of the defendant who has all along been supported by the defendant for living but the Court of Appeal has made it clear that family circumstances plays no part in mitigation especially in drug trafficking cases.  A foreigner would not and cannot expect to be dealt with anything less than a local offender in the same offence.  In different cases, the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a defendant convicted of a drug trafficking offence.  Relevant to this case, for sentencing purposes, cocaine is to be treated as the same as heroin. (see Attorney General v Rojas [1994] 1 HKC 342)

15.  The sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained.  Thus the quantity for which this defendant must be sentenced is 28.1grammes of cocaine.

16.  The sentencing ranges for trafficking in heroin and cocaine are to be taken from the guidelines laid down by the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370.  There, the Court of Appeal held that for amounts of between 10 to 50 grammes, the sentencing range should be 5 to 8 years’ imprisonment.

17.  The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines and that whilst the sentencing judge may retain some degree of discretion, the sentence imposed should normally be within the suggested bands.

18.  For the trafficking in cocaine, according to the tariff, the appropriate starting point will be 6 years and 4 months.  Mr Bullett submitted that according to his instruction, about a quarter of the quantity of the cocaine was for defendant’s self-consumption.  He therefore urged me to further reducing the starting point for this reason.

19.  It is true that in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal held that when it was accepted that “all or part” of the dangerous drugs, in which the defendant trafficked unlawfully, was for his own consumption, depending on the circumstances, the court should afford the defendant a discount in the range of 10% to 25% from the basic starting point.  However, in the subsequent judgment of HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, the Court of Appeal had cited the requirement articulated in its earlier judgment in HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69, that the discounts of sentence to reflect the element of self-consumption was to be afforded only where the court accepted that a “significant proportion” of the dangerous drugs was for self-consumption.

20.  In the 1^st Charge, a quarter of the quantity of cocaine deducted will has the effect of reducing the starting point from 6 years and 4 months to about 5 years and 10 months with a reduction of 6 months.  It is already about 10% reduction in terms of imprisonment from the starting point which is already the lower threshold of the range of discount suggested in Chow Chun Sang.  As said, the Court of Appeal had made it clear however that the discount range between 10% to 25% has no application when the proportion for self-consumption is not to be regarded as significant.

21.  I had made it clear to Mr Bullett that I am not prepare to accept the defendant’s claim for self-consumption simply from the Bar table.  The defendant will have to make good her claim by coming to the witness stand and give her version under oath or affirmation and be tested by cross-examination.  The defendant, however, declined to testify to support her claim.

22.  For the following reasons, I am not satisfied that a significant proportion of cocaine in this case was for the defendant’s self-consumption:-

(1) the street value of the cocaine is about $34,000 and a quarter of which is about $8,500. There is not a shred of evidence of the defendant’s general means and her ability to pay for her drugs otherwise than by trafficking in them in all;

(2) at the time of arrest, the defendant has overstayed in Hong Kong for about 11 months already with no employment, not even illegal employment, to support her living and paid for her rents in a suite in a hotel which she has rented for 6 months since January 2018;

(3) the inhaling devices found contained only traces of cannabis and not cocaine;

(4) there is the presence of paraphernalia associated with drug trafficking including electronic scales and ziplock bags;

(5) the presence of large sums of cash (about HK$85,000) found in the safe.

23.  While I accept that the positive result of presence of cocaine during the defendant’s urine test conducted 3 days after her arrest did support her claim that she was perhaps both a cocaine and cannabis abuser, that alone, without more, is not sufficient to convince me that a significant proportion of cocaine was for her own-consumption.

24.  That said, after due consideration of the defendant’s claim that she has all along been using both cocaine and cannabis for medical purposes to ease her pains in the legs following her injuries back in 2010, I am prepare to still exercise my discretion to reduce the starting point by 4 months (which is about 5%) to take into account the fact that some portion of cocaine might have been intended for her self-use.

25.  In the end, for the 1^st Charge, the starting point is reduced to 6 years accordingly.  After a full 1/3 discount, the sentence is further reduced to 4 years’ imprisonment.

26.  For the 2^nd Charge, the quantity is 14.3 grammes of cannabis in herbal form.  In the judgment cited by Mr Bullett, HKSAR v Castano Arango Jose Reinel CACC 174/2014, the Court of Appeal imposed a fine of $10,000 with 2 weeks’ imprisonment in default of payment in respect of 9.57 grammes of cannabis in herbal form and order the sentence to run concurrently with the imprisonment terms of the two counts of unlawful trafficking.

27.  I would therefore also impose a fine of $10,000 and in default of payment, a period of 2 weeks’ imprisonment to be served concurrently with the sentence imposed on the 1^st Charge.  I decline to make an order that the fine be deducted from the cash found in the safe in the hotel room as I was told that all the cash found would be liable to be forfeited under s.56 of the Dangerous Drugs Ordinance (Cap 134) in connection with the unlawful trafficking of the cocaine to which the defendant has no objection.

28.  For the 3^rd Charge, the possession of inhaling devices, I would agree with Mr Bullet and adopt his suggestion to adopt a starting point of 4.5 months and impose a sentence of 3 months’ imprisonment following the plea in respect of this charge to be served concurrently with the sentences imposed on the 1^st and 2^nd Charges.

29.  Finally, for the 4^th Charge, the defendant has overstayed for 11 months and what is more, she committed unlawful trafficking in cocaine during the period of her overstay.  The offence is separate and distinct with the other three charges and a consecutive sentence is clearly required even after taking into account the totality principle.  In this charge, I shall adopt a 3 months’ imprisonment as a starting point and reduce the sentence to 2 months to be served consecutively with the sentences of the other three charges.

30.  I believe that in the circumstances of the present case and taking account of the antecedents of this defendant, the correct totality of all the 4 charges is one of 4 years’ and 2 months’ imprisonment and that is the sentence I impose.