HKSAR v. OROZCO RESTREPO WILFRAY ALONSO

DCCC 325/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 325 OF 2016

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Reasons for Sentence

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1.  Defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  At about 1730 hours on 29 April 2015, the defendant was observed wandering outside Room B4 of 16th Floor of Ko Shing Street, Sheung Wan.

3.  Police conducted a body search, and inside the underpants the defendant was wearing, 2 transparent resealable plastic bags containing 10 and 14 packets of cocaine respectively, subsequently certified to contain 14.98 grammes of a powder containing 7.28 grammes of cocaine were found.

4.  The defendant was brought to police station, and one more packet of cocaine, 0.6 grammes of a powder containing 0.3 grammes of cocaine, was also found inside his mobile phone case.

5.  From the defendant’s mobile phone there were suspicious WhatsApp messages with others, where 35 photos and 6 videos were found.  There were messages where the defendant sent photos showing a white scale weighing a packet of white solid, with the scale displaying different weights.  There were also other messages appearing to be collecting and distributing things to different persons from different places as well.

6.  The retail price for 1 gramme of cocaine was $1,146, and thus the total price of the drugs seized was $17,855.

7.  The defendant is aged 36, a Colombia national, and has no criminal record in Hong Kong.  Mr Morley, for the defendant, submits that the defendant is married, with 4 children, where he has to support to their upbringing by paying about US500 per month to them.  The defendant has been operating a manufacturing business from 2003, but just ceased last year.  For the drugs concerned, the defendant would consume part of it, maybe roughly a quarter of it, and Mr Morley also submits a urine test report showing positive findings of cocaine from the defendant.  The defendant’s letter also asks for leniency, he pleads guilty to the charge and hopes for a lenient sentence.

8.  Trafficking in a dangerous drug is a very serious offence.  The Court of Appeal, in AG v Pedro Nel Rojas [1994] 1 HKC 342, had stated that the guideline in R v Lau Tak Ming [1992] HKLRD 370 equally applied in cases of cocaine where trafficking up to 10 grammes, 2 to 5 years’ imprisonment shall be imposed.

9.  In the present case, it involved 7.58 grammes.  Applying the above cases, about 4 years and 3 months’ imprisonment should be imposed.

10.  However, in HKSAR v Wong Suet Hung [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang CACC 135/2011, it is stated that discounts could be made if part of the drugs were for self‑consumption.

11.  Now, in the present case, it should be noted the defendant is an addict.  A positive finding of cocaine was found from his urine, but there were altogether 25 packets of cocaine found worth more than HK$17,000, and they were found from the defendant’s underpants, and even one packet from his mobile phone case.

12.  In the circumstances, considering all the facts, it is appropriate to reduce the starting point to 3½ years’ imprisonment, and that be further down to 2 years 4 months upon his guilty plea.

13.  Therefore, in the present case, the defendant is sentenced to 2 years 4 months’ imprisonment for the offence.