HKSAR v. LOAIZA VARGAS GEOVANNY

DCCC 838/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 838 OF 2016

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REASONS FOR SENTENCE

1.  Loaiza Vargas Geovanny you have pleaded guilty to one charge of trafficking in 16.58 grammes of a powder containing 7.57 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1]and one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance[2].

2.  In summary you arrived in Hong Kong from Colombia on 6 March last year.  You went to Macau on 28 March returning to Hong Kong on 30 March when you were permitted to stay as a visitor until 28 June.  In breach of your condition of stay you did not leave as required and had by the time of your arrest overstayed 10 days.

3.  Your were arrested in the evening of 8 July having been seen by the police acting furtively at the staircase of The Centrium on Wyndham Street in Central.  At about 8:03 p.m. PC 8091 intercepted you and conducted a search. 

4.  In your right front trouser pocket PC 8091 found a red packet containing sixteen resealable plastic bags, containing 4.54 grammes of cocaine.  At the police station a further search was conducted.  In the left rear pocket of your trousers the police found a box containing ten resealable plastic bags, containing 3.03 grammes of cocaine.  On arrest you were also found in possession of HK$7,225 and two iPhones.

Mitigation

5.  In passing sentence I have carefully considered everything said on your behalf by Mr Tong together with your letter of mitigation.  I take into account you have a clear record in Hong Kong.  This however carries little weight where the offender is a visitor who has overstayed and has committed serious crime. 

Starting point

6.  In Attorney General v Pedro Nel Rojas the Court of Appeal 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.  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[4].

7.  I am satisfied the proper starting point after trial for 7.57 grammes of cocaine based on quantity alone is 4 years and 3 months imprisonment.  

Aggravating feature

8.  Although you came to Hong Kong with sufficient funds I am told you agreed to deliver drugs because you were desperate for money to obtain a visa to go to China and buy goods for trading in Colombia. 

9.  Resorting to trafficking in drugs to earn quick money is a gross abuse of the hospitality offered by Hong Kong.  The offence being committed over three months after you first came to Hong Kong I am prepared to accept you did not come to Hong Kong to commit crime.  

10.  In HKSAR v Aguilar Garcia Milner Javier the Court of Appeal said that the fact that the applicant was a visitor to Hong Kong was a factor to which the judge was entitled to have regard, as being in aggravation of the commission of the offence[5].

11.  In the circumstances I increase the starting point by 3 months imprisonment to 4 years and 6 months imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 3 years imprisonment.

Overstaying

12.  You had overstayed only 10 days.  I am satisfied the proper starting point after trial is 21 days imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 14 days imprisonment.

13.  Although the two offences are entirely separate and distinct for which consecutive sentences may be imposed, having taken into account your status as a visitor in passing sentence on charge 1, I am satisfied a concurrent sentence is appropriate.  You are convicted and sentenced to 14 days imprisonment concurrent to the sentence imposed on charge 1.