HKSAR v. MURIEL CORREA EDWARD

HCCC 113/2018

[2018] HKCFI 1706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 113 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, you pleaded guilty to two charges before a magistrate sitting at the Eastern Magistracy on 26 March 2018.

Both offences were committed were on 13 September 2016 for sentence.

With respect to the 1st charge, that is a charge of trafficking in a dangerous drug. You admitted that you trafficked in 810 grammes of a solid containing 503 grammes of cocaine and 123.59 grammes of a powder containing 48.49 grammes of cocaine, together with a man named Montoya Munoz Mauricio at Room B, Flat A, 5th floor, Fu Lok Building, No 131 to 133 Wing Lok Street, Sheung Wan.

With respect to the 2nd charge, that is a charge of possession of dangerous drugs. You admitted that at Room B, Flat A, 15th floor, Wai Tak Building, No 196 to 200 Des Voeux Road West, you had in your possession 1.62 grammes of cannabis in herbal form and 1.89 grammes of a powder containing 0.69 grammes of cocaine.

As result of your pleading guilty, you were committed here to the Court of First Instance for sentence.

On 13 September 2016 at around 3.13 pm, customs officers spotted you and the other man named in the charge looking around furtively after coming out from Fu Lok Building. You were both intercepted. Upon search, a set of seven keys was found upon you. Upon enquiry about the keys, you led the customs officers to the room in Flat A of Fu Lok Building. A search of the room was conducted. On top of a cabinet, a packet of suspected drugs was found.

You were asked where you lived and you told them that you lived at Des Voeux Road West. As a result, you were taken to your flat in Des Voeux Road West. Using your keys, they accessed a room there known as Room 2. A search was conducted and a pack of cannabis which was certified to be 1.62 grammes of cannabis in herbal form, and the cocaine were found. Under a cushion on the sofa, two packets were found which were certified to contain a total of 1.14 grammes of a solid containing 0.39 grammes of cocaine.

You and the other man mentioned in the charge were taken back to Fu Lok Building to continue a search at Room 1. At the false ceiling above the open kitchen area of the room, the drugs, as stated in the trafficking charge, was found. Together with those drugs was found around 600 small empty resealable plastic bags and one electronic scale.

The street value in September 2016 of all the drugs seized from the false ceiling at Fu Lok Building was $1,037,218.49.

You admit and accept now that, at all material times, you had knowledge about the cocaine seized from the false ceiling of Room 1 and you possessed them with the purpose of trafficking. You also admit and accept that you possessed the dangerous drugs found in Room 2 that is in the Des Voeux Road West flat at all material times.

Mr Richard Donald, your counsel, has mitigated on your behalf. You are 32 years of age, single and are a Colombian National. You arrived in Hong Kong on the 19 March 2014, and this was your first visit to Hong Kong.

You came to Hong Kong for the purposes of buying men’s underwear in mainland China, which you intended to take back to Colombia and sell. However, you were unable to do that and later made an application as a torture claimant. Your claim was rejected by the Immigration Department, and I am informed by Mr Donald that you do not have any intention of appealing that decision.

You have completed high school education and attended university for two semesters, learning graphic design. You left to attend the polytechnic for mechanics but did not finish that course.

You had worked as a salesman in a garment shop, earning approximately US$400 to $600 a month. You have a clear record in Hong Kong and I am informed also in Colombia.

You have written a letter to the court, informing the court that you deeply and sincerely regret your wrong deeds. You made a wrong decision and you lacked the opportunity, which drove you to commit this crime. You have asked the court to be as lenient as it possibly can in accordance with the law in Hong Kong.

I have also received a letter written by your father, who is 72 years of age, from Colombia, and your wife -- and your mother, who is 56 years of age. They have also asked the court to be as lenient as it can upon you.

For the offence of trafficking in dangerous drug, the guideline case is that of Lau Tak Ming for trafficking in the drug cocaine. For trafficking in amounts between 400 and 600 grammes, had you been convicted after trial, a starting point of between 15 to 20 years would have been appropriate.

Defendant, at the material time of the offence, you were a Form 8 recognizance holder. In a very recent decision handed down on 22 June 2018 by the Court of Appeal in HKSAR v Joof Saihou CACC 252/2017, the court reviewed its sentencing enhancement in respect of Form 8 recognizance holders committing various serious offences, particularly that of trafficking in dangerous drugs.

At paragraph 30 of the judgment, Zervos J said when referring to another recent case of HKSAR v Ali Saif, he went on to briefly mention the enhancements given in other authorities, noting that in drug trafficking cases, the greater the quantity of narcotic content, the greater the enhancement. He went on to mention various cases in respect of the quantity of narcotic and the enhancement. He said:

“In HKSAR v Dramane Mouhamed Saiti where the court said that the applicant could have had his sentence enhanced by as much as 18 months’ imprisonment for trafficking in 440 grammes of cocaine narcotic.”

I am guided by these cases as to the proper enhancement. In view of what the Court of Appeal have said most recently less than one week ago, I consider an enhancement of 18 months to the starting point to be appropriate.

In sentencing you, had you been convicted after trial for 551.49 grammes of cocaine, I would have taken a starting point of 18 years and 9 months’ imprisonment. I enhance that sentence by 18 months, which makes the sentencing point of 20 years and 3 months’ imprisonment.

You have pleaded guilty at the earliest opportunity at your committal and therefore, a one-third discount is warranted. You shall therefore be sentenced to 13 years and 6 months’ imprisonment for Charge 1.

For Charge 2, you are sentenced to 1 month’s imprisonment and that charge shall run concurrent to Charge 1, which still makes a total of 13 years and 6 months’ imprisonment.