HKSAR v. ALBERTO JAYSON SAN PEDRO

DCCC 1102/2020

[2021] HKDC 870

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1102 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134. The total quantity of the dangerous drugs involved is 22.18 grammes of cocaine.

Facts

2.  The defendant was intercepted by the police when he entered his premises.  Upon searching, a resealable plastic bag containing 49.8 grammes of a powder containing 18.9 grammes of cocaine and two more black paper packets containing two resealable plastic bags containing a total of 1.28 grammes of a solid containing 0.3 grammes of cocaine were found in the defendant’s underpants.  The defendant was arrested and under caution he admitted that someone gave him the drugs and asked him to give them to somebody else.

3.  The police conducted a search of the defendant’s premises and, (1)  a black paper box containing a resealable plastic bag containing 0.52 grammes of a solid containing 0.11 grammes of cocaine and 25 black paper packets containing 25 resealable plastic bags containing a total of 15.2 grammes of a solid containing 2.87 grammes of cocaine; (2)  a bundle of empty resealable plastic bags and (3)  a resealable plastic bag containing a few pieces of black paper were found on top of a wardrobe.  An electronic scale, a ruler, a pair of scissors, a tape dispenser and a notebook were found on a table.  Under caution, the defendant replied to the police that those are for selling.

4.  The estimated street value of the seized cocaine was HK$117,434.4. 

5.  Subsequently in a cautioned video-recorded interview in the presence of a Spanish-English interpreter, the defendant admitted that he knew that the dangerous drugs were cocaine.  Those drugs were given to him by unknown persons and he was told to pass the drugs to somebody else upon instructions.  He did that because he was in financial difficulties and he needed money to pay the rent.  He also stated that his reply that the drugs were for selling at the scene was inaccurate and what he truly meant was that those drugs were for delivery instead.  The defendant also stated that he did not have any habit to consume dangerous drugs.

Mitigation

6.  The defendant is 27 years old.  He has a clear record in Hong Kong.  He received his education in the Netherlands and came to Hong Kong and established an electronic products trading business.  In passing sentence, I have considered all the oral and written submissions by Mr Surman, counsel for the defendant.  In gist, Mr Surman explained that the defendant’s business failed because of the Covid-19 pandemic and he committed the present offences as he needed money to pay for his food and rent.  The defendant was promised to receive a remuneration of $9,000 per month for acting as a courier to deliver the dangerous drugs and he did that for two months.  Mr Surman submitted that the defendant is extremely remorseful for what he had done and urged the court to consider that the dangerous drugs found in the defendant’s underpants and at his premises were part of a common stock or in the defendant’s continuous possession so that the court can determine the appropriate overall starting point of both charges by reference to the total quantity of the cocaine. 

Sentence

7.  In R v Lau Tak Ming [1990] 2 HKLR 370, the Court of Appeal laid down guidelines for trafficking in heroin.  Such guideline is applicable with trafficking in cocaine as stated in AG v Pedro Nel Rojas [1994] 1 HKC 342 and HKSAR v. Abdallah Anwar Abbas [2009] 2 HKLRD 437.  Where the quantity of narcotic is up to 10 grammes the sentence upon conviction after trial is between 2 to 5 years’ imprisonment.  For narcotic contents between 10 grammes to 50 grammes, the sentence will be in the range between 5 to 8 years’ imprisonment.  On a purely arithmetical approach, a starting point of around 71 months’ imprisonment is appropriate for trafficking 22.18 grammes of cocaine.  In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the Court of Appeal emphasised that such approach is only applicable for a courier or storekeeper which they recognised to be the lowest rank in a trafficking hierarchy.  The sentence will be enhanced for actual or direct trafficking of dangerous drugs to others.

8.  Though the defendant did utter that the drugs found at the premises were for sale, there was no interpreter service available for him at that moment. With the assistance of the interpreter, he acknowledged that he had made a mistake and those drugs were actually for delivery.  I accepted his explanation.  On the facts of the case, I am prepared to accept that the defendant purely acted as a courier to deliver the cocaine upon instructions. The overall sentence on trafficking 22.18 grammes of cocaine, giving full credit for the defendant’s plea of guilty, will be 3 years and 11 months’ imprisonment. 

9.  For Charge 1, I will take a starting point of 68 months’ imprisonment and reduce it to 45 months’ imprisonment, i.e. 3 years and 9 months’ imprisonment upon the defendant’s plea of guilty.  For Charge 2, based on the quantity of the drugs, I will take a starting point of 35 months’ imprisonment.  Given the defendant’s plea of guilty, the sentence will be reduced to 23 months’ imprisonment.  Applying the totality principle, I will order 2 months’ imprisonment of Charge 2 to be run consecutively to the sentence of Charge 1.  The defendant is sentenced to 3 years and 11 months’ imprisonment for both charges.