HKSAR v. HINCAPIE ALZATE GILBERTO (ALSO KNOWN AS HINCAPIE ALZATE GILBERTO AND HINCAPIE ALZATE GILBERTO)

DCCC 646/2019

[2019] HKDC 1623

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 646 OF 2019

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REASONS FOR SENTENCE

1.  The defendant, a Form 8 holder from Colombia, pleads guilty to one charge of possession of 3.77 grammes of cannabis in herbal form, contrary to section 8 of the Dangerous Drugs Ordinance[1] and one charge of trafficking in 11.20 grammes of a solid containing 5.67 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance.

2.  Full particulars of the offences are set out in the facts admitted by the defendant.

3.  In summary at about 4:50 p.m. on 16 April this year the police saw the defendant acting furtively outside Phoenix Apartments, No. 70 Lee Garden Road in Causeway Bay.  Upon interception by the police the defendant was unable to produce proof of identity.  The defendant agreed to lead the police to where he was staying at Room 3, Flat B on the 16th Floor of Phoenix Apartments for him to produce his proof of identity for inspection by the police. 

4.  After the defendant unlocked the door the police entered the room.  On a table next to the bed the police found four plastic bags containing the cannabis in herbal form and one hundred and forty-one empty transparent re-sealable plastic bags. On the top of a power supply controller box fixed on the wall above the door the police found eighteen plastic bags containing the cocaine.

5.  Under caution for trafficking in the cannabis the defendant replied “It’s mine”.    

6.  The estimated street value of the cannabis in herbal form is $1,643 and the cocaine is $6,401.    

Mitigation

7.  I have carefully considered the written and oral submissions of Mr Kelly, in particular that the defendant who came to Hong Kong in 2011 has two young children in Colombia[2].

8.  The defendant cannot be given credit for a clear record in Hong Kong having convictions for offences of dishonesty in 2016 and 2018 when he was sentenced to terms of imprisonment.  I take into account the defendant has no previous convictions for drug offences.

Possession of cannabis in herbal form

9.  There are no guidelines for possession of cannabis in herbal form. 

10.  The defendant is not a resident of Hong Kong and his abuse of drugs while allowed to stay in Hong Kong is an aggravating feature of sentence.  I am satisfied imprisonment is appropriate and adopt a starting point of 3 weeks’ imprisonment. 

11.  Although the cannabis was separated into four plastic bags suitable for sale in view of the small quantity and that the urine sample collected on the defendant’s admission to Lai Chi Kok Reception Centre shows positive for cannabis I do not enhance the sentence by reason of latent risk. 

12.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 weeks’ imprisonment.

Trafficking in cocaine

13.  The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.    

14.  On a purely arithmetical approach a starting point of just over 3 years and 9 months is appropriate for trafficking in 5.67 grammes of cocaine.  I adopt a starting point of 3 years and 9 months’ imprisonment.

Own use

15.  The defendant claims that over 50% of the cocaine was for his own consumption and that at the time of his arrest he was on a cocaine binge having had a dispute with his partner[5].  Mr Kelly says that the defendant’s daily consumption was between 1-2 grammes. 

16.  Mr Kelly relies on the result of the urine sample collected on the defendant’s admission to Lai Chi Kok Reception Centre showing positive for cocaine. 

17.  Mr Kelly also informs the court that on arrest when cautioned for trafficking in the cocaine the defendant replied “I don’t know”. 

18.  The prosecution is neutral as to whether any of the cocaine was for the defendant’s own consumption and leaves the matter for the court to determine but does say that over 50% is too much. 

19.  As indicated in court I do not accept the mere assertion that over 50% of the cocaine was for the defendant’s own consumption.  Mr Kelly having taken instructions from the defendant informs the court that the defendant does not wish to give evidence in support of his claim that over 50% of the cocaine was for his own consumption. 

20.  Taking into account, inter alia, the packaging of the cocaine; the finding of one hundred and forty-one empty transparent re-sealable plastic bags; the court has been given little particulars of the defendant’s addiction and by reason of the defendant being a Form 8 holder and therefore not allowed to work the defendant would have no income to buy the cocaine, I reject the assertion over 50% of the cocaine was for the defendant’s own consumption. 

21.  The urine sample collected on admission to Lai Chi Kok Reception Centre being positive for cocaine, I am however prepared to accept that a small part of the cocaine may have been for the defendant’s own consumption. 

22.  In deciding how much weight should be attached to the fact some of the cocaine may have been for the defendant’s own consumption, I have considered the decision in HKSAR v Wong Suet Hau[6], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang, referred to the court by Mr Kelly[7]. 

23.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[8].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant portion of the drugs were for own consumption.

24.  In HKSAR v Cheung Wai Man the Court of Appeal said that in determining whether there was a significant proportion the sentencing court must have credible and reliable information and material[9]. 

25.  As stated earlier the assertion that over half of the cocaine was for the defendant’s own consumption is a mere assertion.  I am not satisfied credible and reliable information and material has been placed before the court to show that a significant proportion of the cocaine was for the defendant’s own consumption.

26.  Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied a reduced starting point of 3 years and 6 months’ imprisonment is appropriate, which is just under a 7% discount.

Aggravating features

27.  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 for order and security.  Trafficking in drugs clearly affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.

28.  In HKSAR v Ali Saif the Court of Appeal said that for a serious offence of trafficking in drugs before the District Court or High Court they would not expect an enhancement for this factor to be less than 6 months’ imprisonment[10].  I am satisfied that the starting point is to be enhanced by 6 months to 4 years’ imprisonment.

29.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 8 months’ imprisonment. 

Totality

30.  I agree with Mr Kelly that concurrent sentences are appropriate[11].  If the defendant had been convicted of trafficking in cocaine and cannabis I am satisfied that the small quantity of cannabis would not have increased the starting point for trafficking in cocaine. 

31.  The defendant is sentenced to concurrent sentences of 2 weeks’ imprisonment on charge 1 and 2 years and 8 months’ imprisonment on charge 2.