HKSAR v. GOMEZ BECERRA DEIBER

DCCC 950/2020

[2021] HKDC 312

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 950 OF 2020

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REASONS FOR SENTENCE

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1.  The Defendant, a 33-year-old Columbian overstayer, pleaded guilty before me to 3 counts of offence:

Charge 1- drug trafficking[1] (4.45g of a solid containing 0.95g of cocaine);

Charge 2- drug trafficking (56.5g of a solid containing 9.85g of cocaine);

Charge 3- overstaying[2] for nearly 13 months.

2.  On the night of 1 June 2020, police officers stopped the defendant for questioning while he was coming out of a building in Jaffe Road, Wan Chai, where he lived.  He was then brought back to his home on the 5^th floor for a search.

3.  Once inside his home, the officers first conducted a body search on him and found two bags of cocaine underneath his underpants (one containing 5 plastic bags with a total of 2.85g solid containing 0.71g of cocaine and another 3 plastic bags with a total of 1.6g solid containing 0.24g of cocaine).

4.  Further drugs were discovered from the defendant’s wardrobe in his bedroom, here the officers found a zipper bag with two plastic bags of cocaine in it (one containing 2 plastic bags with a total of 42.2g solid containing 6.61g of cocaine and another 25 plastic bags with a total of 14.3g solid containing 3.24g of cocaine).

5.  Other things found included two plastic bags containing smaller empty plastic bags - one with 477 and the other 74, and two electronic scales. Cash of different currencies was also found - HKD $10,690, USD $1,930, GBP 20 and EURO 50.

6.  The immigration records showed that the defendant entered Hong Kong on 7 February 2019 and was only permitted to stay as a visitor for three months until 8 May 2019, but he remained here thereafter in breach of his condition of stay.

7.  The defendant has one prior conviction similar to charge 3 – overstaying - for which he was given a prison term of 8 weeks on 22 November 2017.

8.  The court heard that the defendant went to university in Columbia majoring in electronic technology and has graduated from it. Back in Columbia, he has a 7-year-old son and a retired mother; here in Hong Kong, he lives alone and is out of job relying on financial support from his family in Columbia.

9.  Counsel for the defendant, Mr Grounds, submitted that the cocaine found on the defendant came from those in the premises, and the overall starting point on the cocaine charges should be no higher than 5 years so that the sentences on charges 1 & 2 should run concurrently.

10.  Mr. Grounds said, “The defendant has had time to think matters through and is filled with remorse. He maintains he is now a different man and acknowledges his errors. He also wishes to apologise to society in Hong Kong for his acts. Being held in custody on remand has made him realise the dangers that drugs pose.”

11.  One final matter put forward by the defence is “part consumption”. The defendant claimed he has been a cocaine abuser for many years, Mr. Grounds said some of the drugs were for the defendant’s own consumption and urged the court to give a further reduction in sentence.

12.  I have clarified with Mr. Grounds that the defendant was only talking about a small part of the drugs for personal use. In Kong Tat Lung CACC 27/2016, in dealing with part consumption, the Appellate Court has this to say:

“69. Where the position of the defendant is that only part of the dangerous drug rather than a substantial part of the dangerous drug was for his own consumption, the court can then according to the circumstances in individual cases exercise its discretion by deciding whether the defendant should be given any reduction in sentence for that reason and the extent of that reduction.

70. We must emphasise that in the above circumstances, it is entirely in the judge’s discretion according to the circumstances of each individual case whether to give the defendant any reduction in sentence and extent of that reduction on the basis that the defendant intended to use a small part of the dangerous drugs for his own consumption. Under normal circumstances, it is not appropriate for the defendant to use that as a ground of appeal to ask for further reduction from the Court of Appeal.”

13.  First, the defendant was out of job in Hong Kong, although he said he relied on financial support from home, there he has a 7-year-old son and a retired mother, I doubt very much they could support the defendant. His only source of income here, seems to me, is drug trafficking. Second, there is nothing to substantiate his claim of a cocaine abuser such as urine test. Simply put, I am not prepared to reduce the sentence any further on this ground.

14.  There are sentencing guidelines for trafficking in this type of drugs - trafficking up to 10g, 2 to 5 years; between 10g - 50g, 5 to 8 years. Given the amounts he admitted trafficking, for charge 1, I take 27 months as the starting point while for charge 2, 60 months. Insofar as charge 3 is concerned, this is his second offence, I take 3 months as the starting point. 

15.  His pleas are timely so that he is entitled to a full 1/3 discount. After giving the appropriate discount, the individual sentences are as follows:

Charge 1- 18 months;

Charge 2- 40 months;

Charge 3- 2 months.

16.  Considering the totality principle, I order that charge 1 be run concurrently with charge 2 but consecutively to charge 3, the total term is one of 42 months’ imprisonment.