HKSAR v. QUINTERO CORREA JHON EDUAR

DCCC 462/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 462 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges of trafficking in a dangerous drug which were committed on 22 February 2017.

2.  The facts admitted show that the charges arise out of a police operation at a flat the defendant was occupying in Sheung Wan. The facts also show the defendant is a Colombian national and passport holder living at the time in Hong Kong, and he lived in a flat in Sheung Wan.  There was a search warrant to enter the flat.  Police officers entered the flat and conducted a search.  They found the drugs in Charge 1 in a cabinet and also in a black suitcase, and those drugs were divided into a quantity of 7.81 grammes of narcotic in the top drawer of the cabinet.  And in a much larger quantity of a solid, that is 49.5 grammes of a solid, 1.19 grammes of cocaine were found inside the black suitcase near the bed.

3.  The defendant was taken from his flat to the police station for processing.  Whilst being processed, on his person, inside a black sock which was in his underwear, further drugs were found contained in resealable plastic bags, and they were portioned into two amounts as 2.1 grammes of narcotic and also 1.4 grammes of narcotic.  

4.  The defendant did provide an explanation in video-recorded interviews for his possession of the drug, said the drugs had been left by the previous occupant of the flat, that he himself was a consumer of the drug, that is, the defendant was a consumer of three to four bags of this substance a day.  He said the suitcase and the wallet were his property that had been found as was the money.  He said that he had been given the cocaine by the other Colombian male but the drugs were already packaged.  He would share the drug with prostitutes in Wanchai, and he had the drugs in his underwear because he was planning to consume some cocaine outside of his home. The defendant admits realistically in mitigation that he would sell the drug as well as consume it.    

5.  The total street value of the drug was $65,000-odd.

6.  As far as the defendant’s antecedents are concerned, he is, as we know, a Colombian national.  He is of clear record in Hong Kong and also, I am told, in Colombia.  And by occupation, he is a swimming-pool technician.  He is a single man as well. 

7.  He appears remorseful from the letter that he has written to the court and looks forward to his eventful return to his homeland.

8.  As far as the calculation of sentence in this case is concerned, that is governed largely by guideline sentencing and also other determinations of the appellate courts of Hong Kong.  The individual charges - Charges 1 and 2 - the quantities are 9 grammes in the 1st charge and 3.14 grammes in the 2nd charge.  So both lie within the quantity of up to 10 grammes which should be 2 to 5 years’ imprisonment. However, the overall total of the drug is 12.14 grammes which places it in the category of over 10 grammes which is 5 to 8 years’ imprisonment.

9.  It has been urged strongly by the defence and I agree with this that the defendant is a man of clear record in Hong Kong, he has not had any drug offences before in this jurisdiction and is generally of clear record, and it would be an appropriate case in which to take the lowest point on the guideline in calculating the overall sentence the defendant should serve because given that there are two charges here, the court will have to approach this on a totality basis. 

10.  If one takes that figure, then the overall starting point for sentence for both charges would be 60 months’ imprisonment. The defendant says besides the fact that he has pleaded guilty, there is also he is entitled to a discount for sentence on the basis that he would consume part of the drug himself, says he is a long-term consumer of the drug, and he intimated that to the police in his record of interview, large parts of which are concerned with a description of his drug-taking habit.    

11.  Now, the deduction for that head of sentence, if accepted by the court, can lie between 10 to 25 per cent of the figure taken as a starting point.  For there to be a deduction for this head, of course the court must be satisfied that the defendant himself would consume a significant portion of the drugs.  Of course, that to a certain extent is finding of fact about the future and it has a speculative element in it.  However, given that the defendant has outlined this from an early stage, I consider it would be an appropriate head of discount, and given the defendant’s own description of his drug habit, he would no doubt consume a significant proportion of that drug as well as selling it to support his habit.  

12.  Taking the overall figure, I consider that a figure in the region of 15 per cent would be appropriate which would be capitalised at 9 months’ imprisonment which would reduce the starting point for sentence down to 51 months’ imprisonment.  Of course, the defendant is entitled to further one-third discount from that figure which would lead to an overall sentence of 34 months’ imprisonment.  

13.  The case, the charges are divided into two here.  So it will require the appropriate sentence to be passed for each charge, and each of those charges lies within the sentencing guideline of 2 to 5 years’ imprisonment. 

14.  What I shall do, in respect of Charge 1, I will take a starting point of 54 months’ imprisonment, reduce that by 9 months to 45 months’ imprisonment to take into account the defendant’s self-consumption.  Then after deduction of one-third, that would lead to a sentence of 30 months’ imprisonment on the 1st charge.

15.  On the 2nd charge, I will take a starting point of 36 months and reduce that by 6 months for the defendant’s self‑consumption, leading to a figure of 30 months.  After deduction of plea of guilty of one-third deduction, it further leads to a sentence of 20 months’ imprisonment. 

16.  So the individual sentences will be on the 1st charge 30 months’ imprisonment; on the 2nd charge, 20 months’ imprisonment.  To achieve the correct overall total figure, I will order that 4 months of the 2nd charge run consecutively to the 1st and the balance concurrently, leading to a total of 34 months’ imprisonment.