CRIMINAL CASE NO. 241 OF 2009
COURT: Agudelo Lopez Luis Alberto, you must stand up, please, whilst I sentence you in respect of this offence.
You were stopped in Wan Chai in the early hours of 20 January 2009, and you were in possession of a quantity of cocaine which comprised a mixture of about 100 grammes containing 60 grammes of cocaine.
The retail value of these dangerous drugs was approximately $78,000.
You have today, virtually a year later, pleaded guilty to trafficking in dangerous drugs. Today in mitigation your counsel has given me a detailed account of your background and family circumstances, and, amongst other things, has told me that you have been addicted to cocaine since, it seems, around about 2007, and that you were using, at one point, 3 to 4 grammes of cocaine per day prior to your admission to hospital in August 2008, and that thereafter you reduced your consumption of cocaine to approximately 2 to 4 grammes per week.
I was told by your counsel in the course of mitigation that you purchased this quantity of dangerous drugs because it was cheaper to buy it in bulk, and you heard me raise with counsel the issue of whether it was any part of your mitigation to assert that the dangerous drugs seized from you were for your own consumption, because it appeared to me that there may be some ambiguity which needed to be resolved before proceeding to sentence you.
In the event, I have been informed by Mr Richmond on your behalf, having taken time to confirm his instructions with you, that your plea of guilty to trafficking in dangerous drugs was unequivocal and that you have instructed him that all the dangerous drugs in your possession were possessed for the purposes of trafficking and not for self‑consumption.
It follows that it has not been necessary to explore the issue of whether any part of the drugs seized by the police were for self-consumption, and I must deal with you on the basis that they were not.
In any event, let me tell you, it could have made little difference to the overall sentence, even if the position were different. You have been told that sentences for trafficking in dangerous drugs are determined largely by reference to the volume of narcotic being trafficked, so that all traffickers are sentenced on more or less the same basis.
To this end, the Court of Appeal has established guidelines for sentences for different types of dangerous drugs. Cocaine falls into the same category as heroin, and the same guidelines apply.
Let me refer briefly to the personal circumstances which have been described to me. I am told you are 26 years of age, a native of Colombia; that you came to Hong Kong in October 2006 on a tourist visa, but that your visit was propelled by a desire to escape from a threat to your life in Colombia. I am told that you had been shot and wounded by a paramilitary officer arising from a trivial incident; that you believed that the threat continues; that the mother of your child in Colombia was murdered after your departure.
Of course, I cannot make any determination as to the validity of these claims, because I have no evidence before me. I appreciate that you are an asylum seeker here in Hong Kong with a claim for refugee status with the UNHCR which is still outstanding. Nevertheless, I bear in mind what has been said, though these matters can have no impact on the sentence that I impose upon you today.
As well as what I have already said about what you say about your addiction to cocaine, I am told that your drug problems or drug abuse led to some health problems which are referred to in the medical reports which have been submitted to the court today, and I am also informed that here in Hong Kong you have a relationship from which there is a young child born in November 2008, and that child and your girlfriend are here in court today. I have received a plea on your behalf from her in the form of a letter, together with your own letter and a letter from the chaplain of Lai Chi Kok Reception Centre.
What emerges from those letters is your remorse for the commission of this offence and the consequences that it has for you and your girlfriend and your child. That remorse is also reflected in your plea of guilty to the charge, and the consequence of this mitigation is that I will reduce the sentence imposed upon you by one-third from the appropriate starting point; that is, the sentence which would have been imposed if you had been convicted after trial, and that, you will appreciate, is a substantial discount.
Given the quantity of drugs here, the starting point for sentence should be one of 8 years and 6 months’ imprisonment, which is thus reduced to a term of 5 years and 8 months’ imprisonment, and that is the sentence which I impose upon you.