HKSAR v. POLO NAVARRO JUAN CARLOS

DCCC 574/2018

[2019] HKDC 352

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 574 OF 2018

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REASONS FOR SENTENCE

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1.  This is a case of police stop and search in the street leading to the discovery of drugs.

2.  The defendant, a Venezuelan Form 8 holder, pleaded guilty before me to one count of drug trafficking; the drugs involved are 8.15 grammes of a solid containing 5.64 grammes of cocaine.

3.  Just before mid-night on 27 April 2018, an officer on the beat stopped the defendant, who was acting suspiciously with his hands in the trousers’ pockets, near the junction of Hollywood Road and Graham Street, Central, for questioning.   

4.  The officer found the drugs in this case, which were put in 14 re-sealable plastic bags, from the right and left back trousers’ pockets – 12 bags in the right pocket (6.88 grammes of a solid containing 4.59 grammes of cocaine) while 2 inside his wallet in the left (1.27 grammes of a solid containing 1.05 grammes of cocaine).    

5.  At the time, the defendant carried $5,591 in cash in his wallet and a mobile phone. He was arrested for the offence of drug trafficking, and at the subsequent interview with the police he acknowledged ownership of the drugs. 

6.  The street value of the drugs in question is estimated to be about $8,000.

7.  The defendant, who is aged 37, single and a person of hitherto clean record, came to Hong Kong from Venezuela in November 2017 and was permitted to remain here under a Form 8 recognizance.

8.  The court heard that the defendant received monthly remittance of US $1,000 from his mother and was living in a rented unit in Chung King Mansion. 

9.  The urine test taken from the defendant after he was taken into custody shows positive for cocaine. It was submitted by defence counsel that a substantial amount of the drugs was for the defendant’s own use, i.e. the 12 packets in his right rear trousers’ pocket, that would represent 84% of the drugs, the defendant asserted, for personal use.

10.  I have indicated to defence counsel that on the evidence before the court, I am not prepared to accept such an assertion, but am more than happy to hear further evidence, if any, to determine the issue. Having taken further instructions from the defendant, defence counsel said that there would not be any further evidence.

11.  By pleading guilty to trafficking, the defendant must accept that he was in the middle of engaging in trafficking activities at the time of his arrest, as counsel put it, he only intended to sell the two packets in his wallet if the opportunity presented itself to him, then I would want to know why he carried so much drugs on him, which were supposed for his own consumption, while doing drug trafficking.

12.  In his subsequent interview with the police after arrest, he told the officers that he bought the 12 packets of drugs in Lan Kwai Fong earlier that night at about 9 p.m.   As he lived in Chung King Mansion, Tsim Sha Tsui, why did he not go home first to stash away those drugs which he said for his personal use? But instead, he seemed to be quite willing to run the risk of being arrested by a law enforcement officer by staying outside with the drugs and being charged with trafficking in the whole lot. That doesn’t make sense to me, thus without a plausible explanation, I am not prepared to accept the defence assertion that 84% of the drugs were for self- consumption.

13.  But on the authority of Kong Tat Lung CACC 27/2016, even if the court rejected the defence’s claim of self-consumption, the court still retained a discretion to reduce the sentence (of course not as much as 10%) simply for the fact that some, though not significant, of the drugs was for personal use.

14.  Given the positive result of his urine test, I am prepared to accept that he is a cocaine abuser, some of the drugs found on him on the night in question might be for his own consumption; for that matter, I would reduce the sentence a little further.      

15.  For trafficking up to 10 grammes of cocaine, the sentencing guidelines suggest a prison term of 2 to 5 years. Given the amount the defendant admitted to trafficking, i.e. 5.64 grammes, I take 44 months as the starting point.

16.  Taking into account the fact that part of the drugs was for the defendant’s own use, I reduce the starting point by 2 months to 42 months.

17.  The fact that the defendant is a Form 8 holder is an aggravating feature. In the recent authority Ali Saif CACC 309/2017, the Court of Appeal has this to say on the question of enhancement for Form 8 holders committing serious offences such as drug trafficking:-

“However, we should say that we would not expect any enhancement for this factor to be less than six months imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court.”

In view of this, I would add six months to reflect this factor.

18.  Taking into account what is said above, the starting point is increased to 48 months. In so far as mitigation is concerned, apart from his guilty plea, there isn’t anything substantial. His plea is timely, so the starting point is reduced by one-third to 32 months.

19.  There being no other reasons for further reduction in sentence, the defendant is sentenced to 32 months’ imprisonment.