HKSAR v. QUINTERO CORREA JHON EDUAR

CACC 299 /2025, [2026] HKCA 1068

On Appeal From [2024] HKCFI 2462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 299 OF 2025

(ON APPEAL FROM HCCC NO 89 OF 2024)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  The applicant was sentenced to 7 years and 2 months’ imprisonment by Johnny Chan J (“the judge”)  in the High Court on 15 August 2024, having confirmed his plea of guilty before a magistrate on 18 March 2024 to trafficking in a dangerous drug, namely 122.63 grammes of a solid containing 95.01 grammes of cocaine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. By the time he applied for leave to appeal, he was 10 months out of time.

The facts

2.  The applicant was a 40-year-old Colombian asylum seeker holding a Form 8 recognizance status in Hong Kong.  On 7 January 2023, police officers intercepted the applicant at the junction of Tsat Tsz Mui Road and Tin Chiu Street in North Point, Hong Kong Island, when he was found to be acting suspiciously.  They searched him and found in his possession 0.05 grammes of what is commonly known as “Ecstasy”, and HK$2,200 and US$21 in cash. A search was subsequently carried out at the applicant’s flat, nearby in Tanner Road, North Point, where there were seized several packets of cocaine, totalling the quantities set out in the charge, as well as various paraphernalia, including three electronic scales, spoons, a bowl, a strainer, a pair of gloves and 1,200 small resealable plastic bags.

3.  The applicant was arrested but not yet cautioned because of the absence of an interpreter.  In a subsequent video recorded interview, during which he was cautioned in the presence of an interpreter, he said he had been a drug addict since the age of 14 and admitted purchasing the cocaine for HK$600 per gramme, which he was intending to resell at HK$800-1,000 per gramme and derive a profit.  His intention was to use the equipment to remove impurities and then mix the drug in order to sell at higher prices.  He was the sole occupant of the flat at the time, paying a monthly rent of HK$10,000.

4.  The estimated street value of the cocaine was HK$85,413.

Mitigation

5.  The applicant’s counsel told the court of the applicant’s family difficulties and his remorse, but accepted that the only real mitigating factor was his early plea of guilty.  It was submitted that, according to the guidelines applicable at the time, the starting point for trafficking in 95.01 grammes of cocaine narcotic should be in the region of 9 years’ imprisonment.

Reasons for sentence

6.  The judge applied the six-step approach set out in HKSAR v Herry Jane Yusuph[1]. Firstly, in identifying the relevant sentencing bracket in the applicable guidelines[2], the quantity fell within the band of 50 to 200 grammes of narcotic, thereby attracting a starting point of 8 to 12 years’ imprisonment.  Secondly, in assessing the applicant’s role and culpability, the applicant’s purchasing, storing, weighing, removing impurities and mixing of the drug for resale at a higher price all suggested that he was an operator of a trafficking enterprise for monetary gain rather than a passive storekeeper.  Thirdly, the judge found the appropriate initial starting point to be 9 years and 9 months’ (or 117 months’)  imprisonment.  Fourthly, the judge identified two aggravating features: (i)  the applicant’s immigration status as a Form 8 recognisance holder; and (ii)  the applicant had a previous court appearance in the District Court in 2017 when he was convicted of two counts of trafficking in dangerous drugs, for which he had been sentenced to 34 months’ imprisonment.  For these two factors, the judge considered that they each warranted an enhancement of 6 months’ imprisonment, thereby taking the notional sentence after trial to 10 years and 9 months’ (or 129 months’)  imprisonment.

7.  Fifthly, the judge found that the only mitigating factor was the applicant’s early guilty plea, for which his sentence was reduced by one-third to 7 years and 2 months’ (or 86 months’)  imprisonment.  Finally, the judge said he was satisfied that the final sentence of 7 years and 2 months’ imprisonment was fair, just and balanced in all the circumstances.

Grounds of appeal

8.  The applicant’s grounds of appeal question the judge’s adoption of the starting point and the enhancements.  By Grounds 1 and 3, the applicant complains that the starting point was not properly calculated, since on a strictly arithmetical approach it should have been 9 years and 3 months’ (or 111 months’)  imprisonment.  Ground 2 avers that the judge erred in characterising him as an operator and for increasing the starting point accordingly.  Ground 4 complains that the enhancement of sentence, in particular the increase for his role and culpability and for his Form 8 status and previous conviction, of effectively 1 year and 6 months’ imprisonment was “too much”.  The foundation of the applicant’s submissions is that the judge’s arithmetic was not accurate.

The respondent’s submissions

9.  Mr Alan Chan, for the respondent, submitted that a discretionless starting point based upon quantity alone was not the correct approach to sentence in trafficking cases: a defendant’s role was always part of the circumstances to consider and the Court retained an important element of discretion.  The judge had drawn appropriate conclusions from the summary of facts as to the applicant’s role and culpability.

10.  If one were to apply a strictly arithmetical approach, the starting point would be 9 years and 2.4 months.  However, the 9 years and 9 months’ starting point was appropriate for the applicant’s role as an active operator of cocaine trafficking.  The enhancement was justified and well within the appropriate sentence range.

11.  Concerning the question of the application being out of time, Mr Chan submitted, by reference to the principles in HKSAR v Nkwo Nnaemeka Darlington[3] and HKSAR v Fundi Furaha Giles[4], that (1)  the sentence imposed was fair, proportionate and not excessive; and (2)  where, in an application for leave to appeal out of time, any potential adjustment by the appellate court would be minimal, and no cogent and compelling reasons were provided for the delay, leave should be refused.

Consideration

12.  The starting point after trial for trafficking in 95.01 grammes of cocaine narcotic (which is within the band of 50 to 200 grammes)  is the same under the revised guidelines in Huang Ruifang (No 3)[5] as it would have been under the previous guidelines in R v Lau Tak Ming, namely, 8 to 12 years’ imprisonment.  Given the quantity involved, there is no difference in the guidelines.  What has changed since Lau Tak Ming is that the approach to sentencing in trafficking cases is no longer strictly a matter of arithmetic.  Therefore, there is little point in comparing one case with another in terms of quantity alone because the facts will be different.  Nor do judges sentence of a strict application of sentence to quantity.  What is required is that the sentencing court assesses the defendant’s role and culpability, having first determined the relevant sentencing band applicable, which in this case was 8 to 12 years’ imprisonment.  That is exactly what the judge did.  He decided that the overall starting point for trafficking in 95.01 grammes of cocaine narcotic, in circumstances where the applicant was plainly more than a storekeeper or courier and was an active operator of a medium-scale trafficking business, in which dangerous drugs were bought, adulterated, packaged and sold, should attract a sentence after trial of 9 years and 9 months’ imprisonment.  There is no reasonable argument that this assessment was excessive.

13.  As for the two aggravating features, they effectively increased the starting point by a further year.  I cannot see any appellate court disagreeing with such an enhancement for these two recognised factors: indeed, it could well have been more, perhaps in the region of 18 months.  The previous conviction in 2017 is a particularly serious matter, which the judge was bound to give a significant enhancement for in the interests of personal and public deterrence.

14.  It follows that there is no reasonably arguable ground of appeal in this case.  Indeed, I should make clear that the sentence could have been greater, particularly in view of the applicant’s status and his defiance of the laws of Hong Kong by committing such a serious offence yet again.  Since there are no reasonably arguable grounds of appeal against sentence and no good reason for granting leave out of time, the application for leave to appeal against sentence out of time is refused.

15.  The applicant is advised that he has the right to renew his application for leave to appeal out of time to the Court of Appeal, but he is also warned, particularly in view of my comments at [13]-[14] above, that the Court has the power to order the loss of any time spent in custody pending the determination of an appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.

[1]  HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[2]  R v Lau Tak Ming [1990] 2 HKLR 370; and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342.

[3]  HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692.

[4]  HKSAR v Fundi Furaha Giles (Unrep., CACC 82/2017, 1 February 2019).

[5]  HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.