HKSAR v. ARAGON PULGARIN DAVID SANTIAGO

HCCC 342/2019

[2019] HKCFI 3069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 342 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

This defendant has pleaded guilty to two charges: the first, trafficking in dangerous drugs; the second, possession of dangerous drugs in Eastern Magistracy and was committed to the High Court for sentence on 14 October 2019.

There was a raid and arrest of five Colombian nationals on 4 April 2018 in premises in Queen’s Road West. The police had received intelligence and obtained a search warrant for Flat A, 5th Floor, Wing Shing Building, 355-359 Queen’s Road West, Sai Ying Pun. It was suspected there were drug‑trafficking activities conducted from those premises and they were informed of three to four Colombian males being involved. One man was arrested as he left the premises and after the police forced their way in, they found three other men and a woman inside. One man was in the living room whilst the other three were in the bathroom.

The prosecution case is that one of those three was flushing the drugs down the toilet whilst the other man and woman threw drugs out of windows. An officer stationed below that window saw drugs thrown out of the window before recovering all the pellets that landed in the rear alley.

The man who was arrested first as he left the premises is Zapata Lopez Jhon Harold, referred to as D1. The man found in the living room is Trejos Calvo Alvaro De Jesus, referred to as D2. The man seen flushing drugs down the toilet, the 3rd defendant, so to speak, is the defendant before me today. The fourth man throwing drugs out of the toilet has not yet been committed to the High Court. The only woman is Garcia Aristizabal Maria Alejandra, who was referred to as D5. D1, D2 and D5 were sentenced yesterday in HCCC 110 & 111/2019. D1 and D2, like D3 today, pleaded at the earliest opportunity whilst D5 was convicted after trial.

All five defendants arrested together were Colombians and in Hong Kong on a tourist visa except for D2 who submitted a claim for non-refoulement protection when his tourist visa ran out in 2017. I have heard what Mr Ross has said about this defendant’s age, family background, education level, employment at home and, lastly, I take into account the guilty plea of the 3rd defendant. A guilty plea is indicative of remorse. I have also heard that 3rd defendant has young children at home in Colombia.

He has a clear record in Hong Kong but that carries little weight when I consider the fact he is a tourist. Counsel for the 3rd defendant, Mr Ross, has said all he can say on his behalf.

Let me deal with Charge 1 which is Charge 2 in HCCC 110/2019. This defendant was jointly charged with trafficking in dangerous drugs, the drugs of this Charge 1. The particulars of the charge are that this defendant with D2, D4 and D5 on 4 April 2018 at Flat A, 5th Floor, Wing Shing Building, unlawfully trafficked in dangerous drugs, namely a total of 120 grammes of a solid containing 84.41 grammes of cocaine, 0.75 grammes of ‘Ecstasy’ and 3.83 grammes of cannabis in herbal form.

After the police entered the premises, having broken down the door with a battering ram, as I said, they found D2 in the living room and D3, D4 and D5 in the toilet disposing of cocaine. This defendant was trying to flush drugs down the toilet. The police recovered some from the toilet bowl. D4 and D5 ran into the shower cubicle, opened a window each, put their arms out and threw pellets of cocaine out of the window. A police officer stationed below those windows watched the windows open, saw two hands stretch out and saw pellets of drugs thrown down. She did recover seven pellets in a rear alley but did deduce that in fact more had been thrown out but possibly not recovered.

The drugs of Charge 1 included many pellets of cocaine found in different locations in the premises, a resealable transparent plastic bag containing five tablets of ‘Ecstasy’ and a bag containing 3.31 grammes of cannabis in herbal form with a balance of 0.52 grammes of cannabis in herbal form found in a grinder and a pipe. The police also found a digital scale, many empty transparent resealable plastic bags and several wads of cash totalling just over HK$62,000 and just over US$500.

As far as Charge 2 is concerned, this defendant was searched after he was pulled away from the toilet to try and prevent him flushing drugs away. A pellet of cocaine was found on the defendant in his trousers. He was charged with possession of this one pellet, 0.8 grammes of a solid containing 0.64 grammes of cocaine.

There is no tariff for possession of drugs but probably the best starting point in this regard is HKSAR v Mok Cho Tik [2001] 1 HKC 261. In that case, the Court of Appeal was asked to consider a case of -- a charge of possession of 15.7 grammes of ‘Ice’. In that case, Stock JA observed at paragraph 267:

“The starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession would be in the range of 12 to 18 months. But that was not the be all and end all of the appropriate starting point.”

Stock JA added:

“Obviously the quantity will be the main governing factor which will determine where the starting point will lie.”

The courts have recognized that in the context of the possession of dangerous drugs, there is a risk of those drugs being disseminated beyond the abuser. There is this latent risk. This enhancement is not merely for a significant quantity of drugs. It is also not to be employed as a form of disguise to sentence the defendant for trafficking in the drug, subject of that possession charge. In HKSAR v Minney, Fok JA, as he then was, observed that -- the authority [2011] 3 HKLRD 556 or 4 HKC 136 at paragraph 28:

“In our opinion, there could be no objection to a sentencing court taking into account the relevant circumstances of the case in determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk that some of those drugs might end up being redistributed and finding their way into the hands of others apart from the offender’s. That is not to say that the court attributes to the defendant an intention to traffic in the drugs but simply reflects that the fact the quantity and circumstances of their possession are such as to pose a risk to society.”

In that authority, there was a challenge to the validity of the latent risk factor as a sentencing consideration but it was rejected by the Court of Final Appeal. However, in this case, in the possession charge the amount of drugs is small. If it had been added to the drugs of Charge 1 and considered for trafficking, the starting point of 8 years and 11 months would remain unchanged. It would therefore be unfair for me to, when I consider a starting point for this possession charge, add more to that starting point overall. The fairest approach will be to consider an appropriate starting point in sentence, then make it concurrent to Charge 1.

This defendant told the police after his arrest and under caution that he was here as a tourist. He had a drug habit and was only inside Flat A for the purposes of purchasing cocaine. He would pay $3,000 per packet. He said he and his girlfriend, D5, were there together to buy drugs and had not been living at the premises. His girlfriend, D5, had told the police the opposite. She had followed her boyfriend, D3, to the premises to rent a room because it was cheaper than Hong Kong hotels. They had been there for two days in Bedroom 1 when arrested.

When this defendant pleaded guilty, he admitted and accepted that he was in possession of the drugs of Charge 1 for the purposes of trafficking with others and was in the possession of drugs for Charge 2 for his own consumption.

Sentencing Guidelines

The sentencing guidelines for trafficking cocaine come from the Court of Appeal authority R v Lau Tak Ming [1990] 2 HKLR 370. Although that authority dealt with heroin, the Court of Appeal since then held that the same guidelines would apply to trafficking cocaine. In that authority, the Court of Appeal held that where between 50 to 200 grammes is involved, an appropriate starting point would be between 8 to 12 years. Mathematically speaking, trafficking in 84.41 grammes of cocaine will attract a starting point of 8 years and 11 months.

In addition to the cocaine, as I said, there were some ‘Ecstasy’ and herbal cannabis, a cocktail of drugs. In the case of HKSAR v Yip Wai Yin, CACC 80/2003, the Court of Appeal there stated that for sentencing in different quantities of drugs, a combined approach would usually be correct in taking a global view. This approach is often preferred and produces a more realistic sentence. In the combined approach, the court looks at the overall quantity of drugs rather than individual parcels.

In the case of HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal there also held that the court should take the most serious and potent drug and adjust it upwards for other drugs. The court there discussed three means of cross‑checking whether the sentence was manifestly excessive. The first test was the absurdity test, the second test was the conversion test, and the third test was the ratio test.

I have considered the sentencing guidelines for cocaine, ‘Ecstasy’ and cannabis in herbal form. Essentially, the quantity of cannabis in herbal form would attract a very low sentence and can be considered a de minimis amount of drugs compared to the cocaine.

I have considered the small quantity of ‘Ecstasy’, 0.75 grammes, and if I were to convert it into cocaine, the starting point of 8 years and 11 months would remain unchanged. Therefore I will take a starting point of 8 years and 11 months for Charge 1.

Defendant, please stand up. As I said, I have taken a starting point of 8 years and 11 months. You have pleaded guilty at the earliest opportunity and entitled to the full discount. After that discount is applied and the sentence rounded down, you are sentenced to 5 years and 11 months.

For Charge 2, I will take a starting point of 12 months for possession of that cocaine and reduce it by one-third for your plea. After that discount is applied, you are sentenced to 8 months’ imprisonment for Charge 2.

I will order that this sentence be served concurrently to the sentence of Charge 1. Therefore you are sentenced to 5 years and 11 months’ imprisonment. Do you understand that sentence?

ACCUSED: Understood.