HKSAR v. NORENA GUTIERREZ CRISTHIAN ANDRES

DCCC 262/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 262 OF 2014

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REASONS FOR SENTENCE

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1.  Cristhian Andres Gutierrez Norena you have pleaded guilty to one charge of trafficking in 12.39 grammes of a powder containing 5.41 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1). On a second charge of trafficking in 42.36 grammes of a powder containing 18.59 grammes of cocaine and 1.08 grammes of a solid containing 0.43 gramme of cocaine you plead not guilty to trafficking but guilty to possession, which plea is acceptable to the prosecution (charge 2).

2.  You arrived in Hong Kong on the 23 October 2012.  In May 2013 you applied for refugee status.  At no time have you ever been given permission to work in Hong Kong.

3.  Full details of the offence are set out in the facts admitted by you yesterday.  In summary in the late afternoon of the 21 November last year the police intercepted you as you were leaving Flat I, 4/F, Maylun Apartments in North Point.  With keys found in your possession the police opened Room 2 of Flat I.  Room 2 had been rented in March of 2013 by Johana Gutierrez Cordoba.  At the time of renting the room you were present and using a different name said you would also live there. 

4.  Inside Room 2 the police conducted a body search and found from your underpants a transparent plastic bag containing 20 small re-sealable plastic bags inside which was the cocaine subject of charge 1.  The police officers searched the room and found 66 plastic bags inside the first drawer of a wardrobe and 3 plastic bags in the pocket of a jacket hanging by the sofa inside which was the cocaine subject of charge 2. 

5.  The total amount of cocaine found by the police was 54.75 grammes of a powder containing 24 grammes of cocaine and 1.08 grammes of a solid containing 0.43 gramme of cocaine. The estimated street value of the powder containing the cocaine is $60,422 and for the solid $1,420.

6.  Inside the room the police also found, inter alia, a sieve containing traces of cocaine; $11,300; and a rental agreement for a flat on the 7/F of 461 King’s Road.  You had rented this flat on the 23 September 2013 for the monthly rent of $9,300.  The following day this flat was searched by the police, again with keys found in your possession.  Inside the flat the police found a notebook computer, two mobile phones, HK$46,636.40; US$925, a packet of plastic bags and an electronic scale.

7.  In passing sentence I take into account everything said on your behalf by Mr Dunn together with your letter of mitigation.  I take into account that you have a clear record although this carries little weight where you are not a Hong Kong resident. 

Trafficking

8.  In R v Lau Tak Ming [1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment.  The courts have equated for sentencing purposes cocaine with heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  I am satisfied the proper starting point after trial for 5.41 grammes of cocaine based on quantity alone is 3 years and 6 months imprisonment. 

Own use

9.  Mr Dunn informs the court that you started consuming cocaine in Colombia and that you were consuming 5-6 grammes per week.  Your intention was to consume all the drugs which you had bought with a loan given to you by a friend with whom you did business. 

10.  You say the drugs that were found in your underpants were taken out to share with friends.  As indicated in court I do not accept part of the drugs found in your underpants were for your own use.  Mr Dunn having taken your further instructions tells the court that you accept all these drugs were for trafficking and that you do not wish to give evidence to support your claim you were to share them with your friends. 

Possession of cocaine

11.  In HKSAR v Mok Cho Tik [2001] 1 HKC 261 at 267 the court said:

“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. ….. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. …….The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

12.  Mr Dunn submits for my consideration HKSAR v Wong Kwan Po [2006] 2 HKLRD 178 where the Court of Appeal said the appropriate starting point for possession of 19.78 grammes of cocaine was 15 months imprisonment.  Unfortunately only the headnote of that judgment is in English.  You were found in possession of a similar amount of cocaine, namely 42.36 grammes of a powder containing 18.59 grammes of cocaine and 1.08 grammes of a solid containing 0.43 gramme of cocaine.  For this quantity I would have thought that a starting point of 18 months imprisonment is appropriate however to achieve consistency I will take a starting point of 15 months.

Latent risk

13.  In Wong Kwan Po the Court of Appeal enhanced the starting point by 9 months because of the rather substantial risk of the drugs being re-distributed.  In my view even without considering whether you were working and where the monies found in the flats came from taking into account that you were leaving Flat I with 20 packets for trafficking and that there were 69 other packets found inside Flat I many of similar size and packaging suitable for trafficking, I am satisfied that there was a very high risk the drugs found inside the flat may fall into the hands of others.  I therefore increase the starting point by 12 months to 2 years and 3 months imprisonment.

Totality

14.  The two respective starting points make a total of 5 years and 9 months imprisonment.  This in my view is clearly excessive for if all the drugs were for trafficking a starting point based on quantity alone would not likely exceed 6 years imprisonment.  I am satisfied that an overall starting point of 5 years imprisonment would be appropriate. 

Aggravating features

15.  The Court of Appeal recently stated that the commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation (see HKSAR v Sandagdorj Altankhuyag & another CACC 45/2013). 

16.  I am satisfied that trafficking in a dangerous drug is an offence which affects the community and reputation of Hong Kong.  In the circumstances I increase the starting points by 3 months to 3 years and 9 months and 2 years and 6 months respectively and the overall starting point by 3 months to 5 years and 3 months imprisonment. 

Sentence

17.  You are convicted on your plea of trafficking in a dangerous drug (charge 1) and possession of a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance (charge 2).  You are sentenced as follows:

Charge 1 – 2 years and 6 months imprisonment; and

Charge 2 – 1 year and 8 months imprisonment;

12 months consecutive and 8 months concurrent to charge 1.

Total sentence to be served by you is 3 years and 6 months imprisonment which I am satisfied properly reflects your criminality on the two charges.