HKSAR v. HENAO VILLA LUIS FERNANDO

HCCC 99/2026

[2026] HKCFI 3829

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 99 OF 2026

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to four counts of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance (“the Ordinance”), Cap 134 and one count of possession of a dangerous drug, contrary to sections 8(1)(a) and (2) of the Ordinance.

PARTICULARS

Count 1

2.  The defendant, on 2 May 2024, outside Room 6, Flat B, 11^th Floor, Coronet Court, Nos. 1-9 North Point Road, North Point, in Hong Kong (“the Premises”) unlawfully trafficked in a dangerous drug, namely 67.6 grammes of a solid containing 50.5 grammes of cocaine.

Count 2

3.  The defendant, on 2 May 2024, at the Premises unlawfully trafficked in a dangerous drug, namely 4.00 grammes of a solid containing 2.94 grammes of cocaine.

Count 3

4.  The defendant, on 2 May 2024, at the Premises unlawfully trafficked in a dangerous drug, namely 14.46 grammes of a solid containing 9.99 grammes of cocaine.

Count 4

5.  The defendant, on 2 May 2024, outside the Premises unlawfully trafficked in a dangerous drug, namely 14.8 grammes of a solid containing 10.4 grammes of cocaine.

Count 5

6.  The defendant, on 2 May 2024, at the Premises had in his possession a dangerous drug, namely 0.36 gramme of cannabis, in herbal form.

SUMMARY OF FACTS

7.  On 2 May 2024, police conducted an anti-narcotic operation on the 11^th Floor of Coronet Court. At around 11:32 hours, the police saw the Defendant coming out from Flat B. When the Defendant was about to take with him a shopping trolley which was placed outside the Premises, the police intercepted him and declared their police identities. At that time, the door of the Premises was open.

8.  Upon search, the police found a 2 feet long metal pipe inside the shopping trolley. It was later found that there was 67.6 grammes of a solid containing 50.5 grammes of cocaine inside the metal pipe (subject matter of Charge 1). There were 74 segments of metal pipes and 6 tubing cutters inside the shopping trolley.

9.  Police conducted a body search on the Defendant inside the Premises and found a plastic bag inside the Defendant’s left shoe. There were 6 smaller plastic bags inside the plastic bag, which contained a total of 4.00 grammes of a solid containing 2.94 grammes of cocaine (subject matter of Charge 2).

10.  Police found a brown paper bag on top of a suitcase at the Premises. The brown paper bag contained:

a. Two plastic bags containing a total of 14.46 grammes of a solid containing 9.99 grammes of cocaine (subject matter of Charge 3)

b. A plastic bottle containing a spoon and 255 grammes of a solid in which no dangerous drugs was found

c. A stack of empty transparent re-sealable plastic bags; and

d. Two electronic scales.

11.  Another electronic scale was found on a table inside the Premises. Police further found one plastic packet containing 0.36 gram of cannabis in herbal form (subject matter of Charge 5) in the toilet tank of the Premises.

12.  On a shoe rack placed outside the door of the Premises, police found a plastic bag inside a shoe, which contained 6 metal pipe segments containing a total of 14.8 grammes of a solid containing 10.4 grammes of cocaine (subject matter of Charge 4).

13.  At the time of the arrest, the Defendant was in possession of the key to the Premises. The Defendant was also a Form 8 Recognizance holder.

14.  In a subsequent video-recorded interview (“VRI”), the Defendant said the following under caution:

a. He had been living at the Premises for 4 years. It was rented by his ex-girlfriend. The lease was transferred to him in around March 2023 after his ex-girlfriend left. He rented it at about HK$5,100 per month. He was the only key holder.

b. The shopping trolley belonged to him. The metal pipes and tubing cutters were given to him by a Chinese called “Dai Chi”. “Dai Chi” put the items in a place and asked him to pick them up.

c. The brown paper bag found inside the Premises belonged to him. The cocaine inside the paper bag was purchased by him from an unknown male in Central about 20 days ago at the price of HK$7,000.

d. The cocaine found inside the shoe he was wearing at the time of the arrest also belonged to him. He took it out from the front pocket of his pants when police intercepted him. He intended to discard it but was found out by the police. He purchased it a week ago from the same man in Central at HK$3,000.

e. The cannabis was bought from a Southeast Asian male in Tsim Sha Tsui at HK$300 for his self-consumption.

f. The shoe which was placed on the shoe rack outside the Premises belonged to him. The segments of metal pipes found inside the shoe were also given to him by “Dai Chi”.

15.  The estimated street value of the cocaine seized was HK$79,377 (in powder form) or HK$119,721 (in crack form). The estimated street value of the cannabis seized was HK$86.

BACKGROUND AND MITIGATION

16.  The Defendant was born in Columbia on 16 November 1980. He is now 45 years old.  He has two sons in Columbia. He came to Hong Kong in 2017.  He has a hitherto clear criminal record in Hong Kong. 

17.  He was educated up to high school level. He was unemployed prior to the arrest.

18.  On behalf of the Defendant, Mr. Bullett submitted that the Defendant was merely storing the drugs temporarily for a friend and had no intention in selling them. The Defendant purchased the cocaine under charge 2 (2.94 grammes of cocaine) and received the drugs under charge 3 (9.99 grammes of cocaine) as reward for storing the drugs under charges 1 and 4 (50.5 grammes and 10.4 grammes of cocaine respectively), according to Mr. Bullett. He further submitted that the Defendant is a daily user of cocaine and cannabis. He asserted that 17.5% of the total cocaine was for the purpose of self-consumption. He also referred me to HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.

19.  I have considered HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 which stipulates that where all or a significant proportion of the drug was intended for self-consumption, the ensuing discount would fall between 10% and 25% of the basic starting point, depending on the circumstances.

20.  HKSAR v Kong Tat Lung [2018] 5 HKLRD 635 states that 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 the extent of that reduction on the basis that the defendant intended to use a small part of the dangerous drug for his own consumption (§70).

21.  To support his claim, Mr. Bullett informed this Court that the Defendant was a user of both cocaine and herbal cannabis. Urine test results showed that the Defendant had been tested positive for both types of drugs.

22.  Meanwhile, I have taken into account the factors listed in Wong Suet Hau and noted the following:

a. Among all the cocaine seized, Mr. Bullett averred that those under Charge 2 (2.94 grammes of cocaine) was for self-consumption. On an arithmetical calculation, it takes up less than 4% of the cocaine seized. At the same time, Mr. Bullett averred that the subject matter of Charge 3 (9.99 grammes of cocaine) was a reward for temporarily storing the cocaine, and that it was also intended for self-consumption.

b. The Defendant admitted in the VRI that the herbal cannabis seized was for his self-consumption. Yet, he did not make any assertion of self-consumption in relation to the cocaine seized.

c. The Defendant had never mentioned in the VRI that a friend asked him to store some dangerous drugs at his place. He merely mentioned that the drugs were given to him by “Dai Chi”. He also purchased some of the drugs from an unknown male in Central.

d. He did not explain why there were stacks of re-sealable plastic bags and electronic scales in the Premises.

e. He is a Form 8 Recognizance Holder and did not have a job. He should have limited means to pay for drugs.

f. There was no paraphernalia found.

SENTENCE – CHARGES 1-4

23.  Following HKSAR v Wan Lau Mei [2014] 4 HKC 75, the Court of Appeal held that two trafficking offences where different quantities of dangerous drugs are found in the accused’s possession on the same day but at different locations, the sentencing court should impose sentences on both offences for the total narcotic content and then make the sentences concurrent with one another.

24.  In respect of Charges 1 – 4, the total narcotic content is 73.83 grammes of cocaine.

25.  I have considered the nature and quantity of the dangerous drug involved, the facts of the case, the personal background of the Defendant, the mitigation advanced by Mr. Bullett, and the approach to sentencing those who traffick in dangerous drugs.  With the principle modified by the Court of Appeal in the recent authority, HKSAR v Lee Ming Ho CACC 130/2019 [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. 

Step One: Trafficking Guideline

26.  The first step is to assess the gravity and identify the relevant guideline according to the nature and the quantity of the drug involved.  The sentencing guideline for cocaine is set out in HKSAR v Huang Ruifang [2025] 2 HKLRD 138.  The present case concerns 73.83 grammes of cocaine, which falls into the revised guideline band of 50 to 200 grammes, with a starting point of 8 to 12 years of imprisonment. 

Step Two: The Defendant’s Role and Culpability

27.  The second step is to assess the Defendant’s role and culpability. In this case, there is no evidence suggesting that the Defendant was acting other than a storekeeper or courier.

Step Three: Starting Point

28.  As to step three, this Court would identify where in the guideline band of 8 to 12 years should the Defendant’s case belong.  On a purely arithmetical calculation, the notional starting point after trial would be 8 years and 7 months (i.e. 103 months) of imprisonment. 

Step Four: Aggravating Factors and Step Five: Mitigating Factors

29.  The aggravating factor in this case is that the Defendant is a Form 8 holder. He committed these offences of trafficking in dangerous drugs, betraying the trust and hospitality by causing harm to Hong Kong while awaiting the outcome of his immigration claim, see: HKSAR v Singh Gursevak [2019] 2 HKLRD 274 and HKSAR v Butt Muhammad Gulzar [2020] 3 HKLRD 805.

30.  I will enhance the starting point by 10 months to reflect this aggravating factor.

31.  In relation to the submission on self-consumption, the Prosecution submitted that it is an affront to common sense for the Defendant to leave home with the dangerous drugs he intended to consume and that there is no evidence on the quantity of the Defendant’s daily consumption at all. The Defendant’s explanation in his VRI is also contradictory to what has been advanced by Mr. Bullett in his mitigation submission, including the source of the drugs in Charges 2 and 3. In any event, I am of the view that the portion of dangerous drugs intended for self-consumption does not take up a significant proportion of the drugs seized. I have specifically asked Mr. Bullett whether the defence would like to have a Newton Hearing. He replied in the negative. I do not consider that it is appropriate to grant any discount ranging from 10% - 25%. However, in light of the urine test results, I would exercise my discretion and adopt a starting point of 9 years (i.e. 108 months) of imprisonment. That is, 103 months + 10 months (being a Form 8 holder) - 5 months (self-consumption) = 108 months.

32.  Mr. Bullett has shown 26 photos to this Court this morning and he confirmed none of them showed any inward remittances. The photos merely depict some clothing and shoes, and packages that were sent to different locations of the United States. He also confirmed that there is no evidence in regard of the alleged remittances.

33.  This morning, I was also given a letter written by Church Doctrine of Israel in Hong Kong. The contents of the letter have been read out in court.

Step Six: Overall Sentence

34.  In view of the Defendant’s timely guilty plea, he is entitled to one-third discount in his sentence. After the discount, the sentence is reduced to 6 years’ (i.e. 72 months’) imprisonment for Charges 1 - 4. 

SENTENCE – CHARGE 5

35.  The Defendant was found to possess 0.36 gramme of cannabis in herbal form. For that, he is sentenced to 7 days’ imprisonment, to be served concurrently with Charges 1- 4.