HKSAR v. VAZQUEZ ROBLES DAVID HORACIO

DCCC 156/2020

[2020] HKDC 1215

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 156 OF 2020

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to two charges of “Trafficking in a dangerous drug”[1], involving 1.55 grammes of a solid containing 1.16 grammes of cocaine and 8.41 grammes of a solid containing 5.47 grammes of cocaine respectively.

Admitted Facts

2.  On 3 January 2020, the Defendant was intercepted by police outside No. 55 Wyndham Street, Central, Hong Kong.  At about 9:33 p.m., a body search was conducted on the Defendant. Upon searching, a plastic bag (“Exhibit 1”) containing 2 cellotaped brown paper packets of suspected drugs were found from the left front pocket of the Defendant’s shirt. A black pouch (“Exhibit 2”) was found from the Defendant’s underpants. Inside Exhibit 2, a plastic bag (“Exhibit 3”) containing 3 cellotaped brown paper packets of suspected drugs and another plastic bag (“Exhibit 4”) containing 8 cellotaped black paper packets of suspected drugs were found.

3.  Exhibits l, 3 and 4 were subsequently examined by the Government Chemist, who confirmed that: -

i)  Exhibit 1 contained 2 celloptaped paper packets containing a total of 2 plastic bags containing a total of 1.55 grammes of a solid containing 1.16 grammes of cocaine.

ii)  Exhibit 3 contained 3 cellotaped paper packets containing a total of 3 plastic bags containing a total of 2.36 grammes of a solid containing 1.82 grammes of cocaine.

iii)  Exhibit 4 contained 8 cellotaped paper packets containing a total of 8 plastic bags containing a total of 6.25 grammes of a solid containing 3.65 grammes of cocaine.

4.  At about 21:41 hours on the same day, PW1 arrested Defendant for the offence of “trafficking in dangerous drugs” in English.

5.  On 4 January 2020, PW1, PC 16847 (“PW3”) and the Defendant conducted a video-recorded interview. Under caution, the Defendant stated that he bought the 13 packets of dangerous drugs from an unknown person on the street for $300 per packet for self-consumption.

6.  At the material time, the total street value of the dangerous drugs involved in this case was about HK$7,114.

Criminal Record and Antecedent

7.  The Defendant has a clear record.

8.  The Defendant was born in Mexico and is now aged 31 years old.  He has upper secondary level education in Mexico.  He is in good health condition. 

Mitigation

9.  The Defendant, aged 31 was a tourist and arrived in Hong Kong on 9 December 2019. He is not a torture claimant and his status is therefore not an aggravating feature. Apart from Hong Kong he had intended to travel to other parts of South East Asia.

10.  He had always lived in Mexico City and for the last 15 years was a construction worker, engaged in the renovation of houses. His monthly salary was equivalent to US$2,000.

11.  The Defendant indicated his guilty plea to the two charges at the earliest opportunity.

12.  The Defendant asserts that at least one gramme of the drugs was to be consumed that evening in the toilet of a nearby restaurant. The Defendant accepts that even if this were to be accepted by the Court it would not affect the starting point, because (1) it is not a ‘significant’ amount in relation to all the dangerous drugs seized; and (2) the possession of one gramme of cocaine carries with it a term of imprisonment of between 12 and 18 months.

13.  Defence accepts that the starting point for trafficking cocaine narcotic falls under the 10 gramme tariff and that is, a nominal starting point, of between 2 and 5 years’ imprisonment.

Sentence

14.  In Attorney General v. Pedro Nel Rojas[2], the Court of Appeal said the sentencing guidelines for trafficking heroin are applicable on to that for cocaine.  In R v Lau Tak Ming[3] the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic for up to 10 grammes falls within the range of 2-5 years’ imprisonment. 

15.  On a purely arithmetical approach, the starting point for trafficking in 1.55 and 5.47 grammes of cocaine should be 2 years 5 months and 3 years 7 months respectively. 

16.  The Defendant pleaded guilty and is entitled to a one-third discount.  After discount and rounded down to the nearest month, the sentence should be 1 year 7 months for Charge 1 and 2 years 4 months for Charge 2. 

Self-consumption

17.  The authorities recognize that self-consumption can be a mitigating factor, see HKSAR v Wong Suet Hau[4]and in HKSAR v Chow Chun Sang[5].  A further discount of 10 to 25% can be given depending on the circumstances of a particular case.  The notion of latent risk and that even possession of drugs for self-consumption itself may carry a term of imprisonment are also factors to be considered and, as emphasized in Wong Suet Hau (para  34(4)), anything less than a significant proportion being retained for self-consumption would make no or practically very little difference to the sentence.

18.  The Defendant claimed part of the drugs were for self-consumption.  However, except his assertion under caution and in the background report, no other evidence is put forward to support such allegation. There was no urine test report to show defendant was a drug addict. 

19.  According to the background report, the Defendant said he bought the drugs in bulk because of lower price. The Defendant also said he uses cocaine and cannabis once a month.  I failed to see why he, as a traveler, bought in bulk when he intended to travel across countries in Asia.  Especially he only uses drugs once a month.

20.  The Defendant has a clear record. Defence did not ask for a newton hearing.  There is no evidence before me to support he is a drug user.  Therefore, I reject his claim of self-consumption.

21.  Further, the Defendant asserts that at least one gramme of the drugs was for self-consumption, which represents around one-seventh of the total drugs involved.  Defence accepted it is not a significant amount. Further, the possession of one gramme of cocaine carries with it a term of imprisonment of between 12 and 18 months.  Therefore, even if I accept at least one gramme of drugs was for self-consumption, I would not give any further discount.

22.  There are no other reasons for me to further reduce the sentence.  Therefore, sentences will be as follows:

i)  Charge 1: 1 year and 7 months’ imprisonment;

ii)  Charge 2: 2 years and 4 months’ imprisonment.

Totality

23.  The drugs in the two charges were found on the Defendant at the same time.  The total aggregate amount of narcotics in the two charges comes to 6.63 gramme.  Arithmetically, the starting point would be 3 years 11 months, or 2 years and 7 months after the one-third discount.  Therefore, a wholly consecutive sentence would be out of proportion to the overall culpability of the Defendant.  Having considered the totality principle, I will order that 3 months of Charge 1 to be served consecutively to Charge 2, for a total of 2 years and 7 months’ imprisonment.