HKSAR v. MORALES HENAO JHON JAIRO

DCCC 369/2017

[2018] HKDC 28

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 369 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant was convicted upon his own plea and admission of the facts of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The narcotic content involved in this case is about 12 grammes of cocaine, or to be specific, 12.08 grammes of cocaine.

Facts

2.  At around 9:45 pm on 7 February 2017, in a police operation, police officers while waiting at the staircase between the 1^st and the 2^nd floor in a building located at No 22, Western Street, Sai Ying Pun, they saw the defendant, a Colombian former non-refoulement claimant holding an Immigration Recognizance (Form 8) and a female Solano Vega Luz Mary (hereinafter referred to as “the female”) coming out from Room A on the 1^st floor (hereinafter referred to as “Room A”) and going up the stairs.  Some officers followed.

3.  On the rooftop, police officers intercepted the defendant and the female.  Upon search, the defendant was found having HK$6,120 cash and a key.  The defendant claimed that the female was his girlfriend. They resided at Room A and the key seized from him could open the door of Room A.

4.  Police officers then brought the defendant and the female to Room A, used the key seized from the defendant to open the door. A search was conducted in Room A. 

5.  Inside a shoe cabinet near the end of the bed in the bedroom of Room A, the police found a plastic bag containing a transparent resealable plastic bag containing brownish liquid, later confirmed to contain the narcotics in the charge, i.e. about 12 gramme of cocaine, an electronic scale, and two transparent resealable plastic bags containing a total of 48 unused transparent resealable plastic bags. 

6.  Also in that shoe cabinet the police found a transparent resealable plastic bag containing 37 unused transparent resealable plastic bags and a roll of plastic wrap. 

7.  The police also found from that shoe cabinet a sling bag containing two socks containing cash HK$102,000 and US$840, cash of HK$47,200 and various amounts of cash in 17 foreign currencies.

8.  Near the bed in the bedroom of Room A, the police found four iPhones with SIM cards.

9.  Behind the door of Room A, the police found an iPhone with SIM card and a grey handbag containing a tenancy agreement dated 24 December 2016 in relation to Room A between the female and the principal tenant, a rental receipt and a door key.

10.  The defendant was then arrested.

11.  The principal tenant of Room A confirmed that on 24 December 2016, the defendant and the female came to her real estate agency office, requesting to rent a room nearby for one month.  They eventually rented Room A. 

12.  The defendant paid HK$15,000 being one month’s rental and one month’s deposit, while the female signed the tenancy agreement. The lease was supposed to end on 23 January 2017, but was extended until 8 February 2017, and a further sum of HK$3,250 was paid by the defendant.  Two of the three sets of key for Room A were given to the defendant and the female, whilst the last set was kept in the agency office.

13.  Immigration Department confirmed that the defendant had lodged a non-refoulement claim but was withdrawn in December 2016.  Nevertheless, at the time of the offence, the defendant’s Form 8 certificate was still valid.

14.  In a subsequent video-recorded interview, the defendant, under caution, admitted that:

(a) The brownish liquid in the plastic bag, the unused transparent resealable plastic bags and the electronic scale belonged to him. He had not altered the packaging of the bag with brownish liquid inside nor had he tried to consume it.

(b) The brown sling bag and the cash in Hong Kong currency in the two socks belonged to him.

(c) The four smartphones belonged to him but some were broken. Only the white one was used by him.

(d) He resided in Room A with the female, i.e. his girlfriend, for about a month. He paid the rent. He had the keys to Room A.

(e) His income came from singing songs in parks, as well as family subsidies. His monthly expenses were about US$1,100 to US$1,200.

(f) He came to Hong Kong in 2013.

15.  The estimated street value of the dangerous drugs seized was HK$10,968.60.

Defendant’s background

16.  The defendant is aged 37, born in Colombia, of secondary school education received in Colombia.  He arrived in Hong Kong in 2013 and he was supported by his family.  He is single and prior to the arrest, was living with his girlfriend in Hong Kong.  He has three previous convictions in Hong Kong: the first two records were possession of dangerous drugs and breach of condition of stay, entered in 2013 November, and the third record was burglary, entered in May 2014.

Mitigation

17.  A written mitigation was submitted by Mr Mok on behalf of the defendant.  First of all, the court was reminded to take into account his early guilty plea and then it was submitted on the defendant’s behalf that part of the dangerous drug, namely, around 30%, was intended for his own use. 

18.  Support can be found from a urine test report done by the Correctional Services Department on 20 March 2017, i.e. around six weeks after his arrest, when the defendant was in custody, and the result of the report confirmed that the defendant being positive to cocaine, which is the same kind of drug found in this case.  The prosecution has no objection to such claim and agree that can be reflected in his sentence.

19.  It is also submitted as mitigation on the defendant’s behalf that he withdrew his application for asylum as early as in December 2016. 

20.  It is now confirmed by the prosecution that the exact date was 2 December 2016 when the defendant had lodged his withdrawal application.  He was permitted to stay in Hong Kong pending for the return of his Colombian passport and therefore he was still having a valid Form 8 Recognizance awaiting his return to Colombia.

21.  At one stage, the defence solicitor asked the court to separate the two lots of drugs: one for trafficking purpose, the other for self-consumption.  Upon discussion with the court, such submission was withdrawn and it is accepted by the defence that an overall starting point should be adopted and the defence claim of self-use, if accepted, can be reflected by way of reduction in the final sentence.

22.  There is another mitigation submitted on behalf of the defendant, namely, his assistance to an anti-drug campaign organised by Father John Wotherspoon. 

23.  In support, the defence submitted a letter prepared by Father Wotherspoon, where it was said that the defendant had supported the anti-drug campaign to warn people in South America about the danger of drug-trafficking.  The defendant tendered his support by signing letter posted in Father’s website.  It is also said that the defendant had engaged his family and friends in Colombia to spread the campaign message. 

24.  The defence submitted two sentencing cases in the Court of First Instance, namely, HCCC 447/2016 and HCCC 175/2017, where both sentencing judges had acknowledged those defendants’ support in Father Wotherspoon’s campaign and gave additional discount in their final sentences.  The defence invited the court to treat the defendant’s support in the campaign as a mitigating factor and reduce the sentence accordingly.

Sentence

25.  For trafficking in cocaine, there were well-established sentencing guidelines (see R v Lau Tak Ming & Ors [1990] 2 HKLR 370 and AG v Pedro Nel Rojas [1994] 1 HKC 342).  For trafficking in 10 to 50 grammes of cocaine, the starting point should be one of 5 to 8 years. 

26.  The quantity of cocaine in this case is about 12 grammes, so the basic starting point should be 5 years and 2 months, i.e. 62 months.  I adopt that as the basic starting point.

27.  I am now proceeding to consider the aggravating and mitigating factors in this case.

28.  First, I am dealing with the fact that the defendant was a Form 8 holder at the time of the commission of the offence. 

29.  It was as early as in 2013 when the Court of Appeal observed in HKSAR v Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206, that the commission of an offence by a foreign national who was the holder of a Form 8 Recognizance could constitute an aggravating factor and could have his sentence enhanced.  It is because that a foreign defendant, when committing a crime, had abused the hospitality and liberty offered by the Hong Kong Government and his crime had affected Hong Kong’s reputation for order and security and gone to the very essence of Hong Kong’s integrity in the international community.

30.  Since that judgment, the Court of Appeal had on various occasions enhanced or endorsed the enhancement by sentencing judges of sentences of defendants who were Form 8 holders.  The enhancement was usually in the region of a few months.

31.  Very recently, in HKSAR v Don Amarasinghalage Don Chandra Janaka, CACC 377/2016, reasons for judgment given on 25 October 2017, where the appellant was convicted of trafficking in about 25 grammes of “Ice”, the Court of Appeal when sentencing the appellant afresh enhanced the starting point by 9 months to reflect the appellant’s status as a non-refoulement claimant at the time of committing the trafficking offence.

32.  While I am aware of the importance of maintaining consistency of sentencing different defendants in similar factual circumstances to avoid any possible sense of grievance in the minds of those who had their sentences enhanced, I am of the view that the circumstances in this case were a bit unusual, when the defendant had already withdrawn his non-refoulement claim and sought to leave Hong Kong to return to his home country two months before the date of the offence.  It was simply due to the processing of the withdrawal application that he was permitted or, in fact, required to stay behind. Arguably, the defendant was not abusing the liberty or hospitality offered by the Hong Kong’s authority when, in fact, he was seeking to leave Hong Kong at the time or before the time of the offence.  I am therefore minded not to enhance the defendant’s sentence in this respect, which is, in my view, fair if not generous to the defendant.

33.  Now I proceed to deal with the defendant’s claim of having about 30% of the drugs found in this case for self-use, which claim is not objected to by the prosecution and supported by his urine test finding.

34.  The law in this area is also well settled (see HKSAR v Wong Suet Hau [2002] 1 HKLRD 69).  The general principle as set out by the Court of Appeal in paragraph 34 of the judgment is that, where a plea of guilty to trafficking in dangerous drugs is entered and it is suggested in mitigation that a significant portion of the drugs was intended for consumption of the defendant and not for trafficking, it may make a difference to sentence.  As to whether to accept that contention, the factors to be considered include the quantity and the value of the drugs as well as the general circumstances, including:

(a) how the drugs were wrapped and how many packets were found;

(b) the location where the drugs had been found;

(c) the presence of paraphernalia associated with the drugs;

(d) whether the defendant is a drug addict;

(e) the explanation given by the defendant following the arrest;

(f) the defendant’s general means and ability to pay for the drugs; and

(g) the defendant’s criminal record in relation to previous drug offences.

35.  In another Court of Appeal decision HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal while endorsing the earlier principles as set out in Wong Suet Hau, went on to express the view that in drug-trafficking cases when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point.

36.  Having considered all the circumstances in this case, including the quantity and the value of the drug in question, the fact that the defendant being a Form 8 holder who was not permitted to work in Hong Kong, his unconvincing claim that he had his financial means from singing in parks and family subsidy, the presence of substantial paraphernalia consistent with trafficking found at his residence, and last but not least, his previous record of drug offence, I am of the view that only a small portion of the drugs found in this case could be intended for the defendant’s own use and the latent risk of it in trafficking is still high.

37.  I therefore consider that a reduction of 8 months, which represents about 13%, is appropriate in this case, so the starting point is reduced to 54 months.

38.  For the defendant’s guilty plea, I am prepared to give him the usual discount of one-third, so the starting point is further reduced to 36 months.

39.  Finally, regarding the defendant’s assistance in Father John Wotherspoon’s campaign, the defence accepts that the discount here could not be as substantial as in the two cases submitted, namely, HCCC 447/2016 and HCCC 175/2017.  In those cases, those defendants were sentenced to very substantial imprisonment, namely, around 16 to 17 years’ imprisonment, and each of them was given a discount of 6 months.

40.  More importantly, as observed by Judge Barnes in HCCC 447/2016, it was said at paragraph 34 of her judgment that the defendant’s contribution to the campaign was treated as positive good character for the purpose of sentence and, for that reason, a further discount of 6 months was given.

41.  Same in the other case, HCCC 175/2017, that defendant was also a person of no previous criminal record in Hong Kong.

42.  It is a different case for this defendant who has previous convictions in Hong Kong, including one of possession of a dangerous drug.

43.  So, in view of all the circumstances, I am prepared to give this defendant 2 months’ reduction to reflect his support to Father Wotherspoon’s anti-drug campaign.  This, in my view, is already a generous reduction.

44.  The final sentence of the defendant is therefore one of 34 months’ imprisonment.

(Discussion re calculation, disposal of exhibits)

45.  In relation to the disposal of exhibits in this case, on the last occasion before an adjournment, there was an application for forfeiture of certain monies found in the defendant’s premises and, at that time, there was an issue taken by the defence.  I indicated to the defence that they may consider calling evidence to substantiate their objection and the matter was adjourned for further consideration.

46.  I am told earlier this morning that the parties have reconsidered the matter and have now come to a consensus.  Very briefly, it is the parties’ agreement that the money found on the defendant’s person upon his arrest, i.e. item 58, and various cash in different currencies of small value, i.e. items 18 to 35, are to return to the defendant.

47.  On the other hand, for items 13, 14, 16 and 17, which represent the cash found in the defendant’s premises (the total amount is around or close to HK$160,000) together with the drugs, it is now the parties’ agreement that those items are to be forfeited, Mr Mok on behalf of the defendant, confirmed the agreement in open court.

48.  In the circumstances, I do not see the necessity of conducting further investigation of the matter, suffice to say, in view of the defendant’s immigration status in Hong Kong as well as his very limited financial means, those monies to be forfeited must be related to drug activities and an order for forfeiture, in my view, is an appropriate order to make.

49.  I therefore make an order in terms of the amended written application for order for disposal of exhibits dated 8 December 2017.