HKSAR v. BUSTOS ALEXIS DAVID

DCCC 1076/2024

[2025] HKDC 786

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1076 OF 2024

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REASONS FOR SENTENCE

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Plea

1.  Upon guilty plea and admission of facts, the defendant (“D”)  is convicted for a single count of “Trafficking in a dangerous drug”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Admitted facts

2.  At about 4:02 pm on 20 February 2024, PC 8025 (PW1)  and party conducted an anti-narcotics operation in the vicinity of Block A, Chungking Mansions, No. 40 Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong (the “Building”).

3.  PW1 intercepted D near the lift lobby of 15^th Floor of the Building for enquiry.  PW1 subsequently conducted a body search against D and found a transparent re-sealable plastic bag containing a tissue paper containing a white plastic bag containing 59.5 grammes of a solid containing 31.7 grammes of cocaine (the "Cocaine")  from a waist bag which D was carrying.

4.  PW1 then arrested D.  Under caution, D remained silent.

5.  PW1 subsequently seized a mobile phone inserted with a SIM card, cash of HK$1,140, a key card and a key from D.

6.  PW1 and party later brought D to D's residence situated at Room No. 21, Flat A3, 15^th Floor of the Building (the "Room").  PW1 and party then entered the Room, in the presence of D, by using the key card and the key seized from D with a search warrant.

7.  PW1 subsequently conducted a house search at the Room in the presence of D, during which PW1 seized an electronic scale on the bedside cupboard of the Room.

8.  PW1 later conducted a video-recorded interview with D. Under caution, D admitted, inter alia, the following: the dangerous drug seized was cocaine; a male called "ROCO" in Hong Kong gave him the Cocaine in person and instructed him to deliver it to another person; he would receive HK$5,000 for delivering the Cocaine; the waist bag seized belonged to him.  He placed the Cocaine in the waist bag; the Room was rented by him alone at the material time; the key card and the key seized were the access card and key to the Room; the electronic scale seized in the Room belonged to him; he used the electronic scale to weigh the Cocaine which he had to deliver; he claimed that the cash of HK$l,140 seized was the money which he exchanged from United States dollars for his trip when he came to Hong Kong; and the mobile phone seized belonged to him.  He contacted "ROCO", whose mobile phone number was "+852 9343 5347" by using WhatsApp.

9.  The estimated street value of the Cocaine seized in February 2024 was HK$59,083.50 (if the Cocaine was cocaine powder)  or HK$81,098.50 (if the Cocaine was crack cocaine).  By the time the Cocaine was seized it was in the form of powder.

10.  D at the material time possessed 59.5 grammes of a solid containing 31.7 grammes of cocaine for the purpose of unlawfully trafficking.

Mitigation

11.  D is now 31 years of age, married, Argentinian born and received education up to secondary level 4.  He is a tourist in Hong Kong and has a clear record.  

12.  In mitigation, Mr McGuinniety stressed that D pleaded guilty at the first opportunity and expressed genuine remorse.  He has clear record in Hong Kong.  He did offer to assist the police to investigate into the person who hired him but the police regarded the information as insufficient.  While Mr McGuinniety cited two District Court examples, D pleaded for leniency.

Sentencing consideration

13.  Trafficking in dangerous drugs is a serious offence and one can’t expect mercy from courts all over the world as traffickers would destroy a lot of families. For trafficking in cocaine, the Hong Kong Court of Appeal has laid down clear sentencing guidelines.  According to R v Lau Tak Ming [1991] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, for trafficking up to 10 to 50 grammes of cocaine, the sentence is 5 to 8 years’ imprisonment.

14.  On a pure mathematical calculation, the starting point for trafficking of 31.7 grammes of cocaine should be 78 to 79 months’ imprisonment.  

15.  In short, the strongest mitigating factor remains D’s early guilty plea.  I adopt 78 months as the starting point, after one-third discount upon his guilty plea, the sentence for the charge is 52 months' imprisonment.