HKSAR v. GOMEZ MENDOZA YESICA

DCCC 599/2019

[2020] HKDC 549

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 599 OF 2019

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REASONS FOR SENTENCE

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1.  In this case, the defendant Yesica Mendoza Gomez is found guilty of one count of trafficking in a dangerous drug and one count of possession of a dangerous drug upon her plea and admission of facts.

2.  The facts revealed that on 26 April 2019, during an anti-narcotics operation, the police succeeded in gaining entrance to a flat in Lockhart Road, where the defendant had been living alone for two months.

3.  Amongst other things, the police found in the drawer of a wardrobe 12 paper bags of dangerous drugs packets.  They weighed a total of 9.38 grammes containing 4.17 grammes of cocaine.  The street value was $10,702.6.  She is found guilty of trafficking the same.

4.  In addition, the police also found 2 bags containing respectively 0.72 and 0.5 grammes of cocaine, totaling 1.22 grammes.  There were three mobile phones and some foreign currencies.  The defendant was charged with possession of the cocaine in the 2 bags.

5.  Under caution, the defendant admitted all the dangerous drugs belonged to her and that she purchased them with $1,800 for her own consumption.

6.  Further investigation revealed that the defendant had been in Hong Kong since 2014 by virtue of a Form 8.  She had been living on assistance from the International Social Service but had discontinued it in August 2018; since then she claimed she had been living on financial assistance from her boyfriend from the United States.

7.  By her plea, she had admitted to be in possession of the 12 bags containing of 4.7 grammes of cocaine for trafficking.  She was found guilty of both charges upon the facts stated above.

8.  The defendant is a Colombian national.  She had been in Hong Kong since 2014.  She had two previous convictions unrelated to dangerous drugs in 2014.

9.  The sentence for trafficking in cocaine has been considered by the Court of Appeal.  There are very clear guidelines for the same:  see Lau Tak Ming [1990] 2 HKLR 37 and HKSAR v Ousmane Issa Boubacar (unreported, HCMA 381/2015).

10.  In the present case for the 1st charge fell within the “up to 10 grammes” bracket, which warrants a term of imprisonment by 2 to 5 years.

11.  There had been no clear sentencing guideline for sentencing the possession charge.  There are authorities to the effect that in similar circumstances, the court should consider all the drugs as a whole.  Therefore, the sentence for the simple possession charge should not be consecutive to the same for trafficking.

12.  Apart from the number of bags and the quantity of the dangerous drugs, there is an additional aggravating factor.  The defendant had been living in Hong Kong on the strength of a Form 8 since 2014.  For four years, she had been living on charity but by 2018 she had stopped the assistance from the International Social Service and instead had been supported by her boyfriend. It had been held by the Court of Appeal that the fact that the offender was a Form 8 holder is an aggravating factor and a reason for enhancement of the sentence order after pointing out the sentencing judge has the ultimate discretion, the Court of Appeal indicated that the increase should not be less than 6 months:  see HKSAR v Ali Saif, CACC 309/2017, [2018] HKCA 358.

13.  I agree with the defence counsel that this court still has the discretion to consider small increment in view of the fact that the matter is tried in the District Court and in view of the relatively smaller quantity. The Court of Appeal probably did not make the abovementioned comment taking into consideration of this fact.

14.  I would therefore increase the present term of imprisonment by 4 months instead of 6 months.

15.  In respect of the 1^st charge, the defendant is sentenced to 39 months’ imprisonment and it is now increased to 45 months by reason of the aggravating factor.

16.  In respect of the 2^nd count, I shall adopt a starting point of 4 months but order that the same to be running concurrently with that of the 1^st count.

Mitigation

17.  According to the antecedent statement and also to the submissions of the defence counsel, there are not really much that can be said in her mitigation, except that she has made a number of wrong choices in the course of her young life.  At the moment she is 26.  She is still young, but youth, except perhaps extreme youth, is not a valid mitigating factor in a trafficking charge.  She also had a previous conviction, thus deprived of her claim for the extra leniency sometimes accorded to a first offender.

18.  As a rule, on a guilty plea, a defendant should be entitled to a 30-per-cent discount had she pleaded on the first opportunity or upon earlier opportunity.  The underlying rationale is that of utilitarian: it provides an opportunity for those who are guilty to plead guilty so that they could have a shorter sentence, and also it would save the court’s time and public money.

19.  If a defendant fails to plead guilty on the first available opportunity and if she does plead guilty, the court still has an overriding discretion to afford a lesser discount of 20 to 25 per cent.

20.  In this case, the trial date had been fixed before the court had been informed of her guilty plea.

21.  I take into account of the following matters in exercising my discretion.  The most important factor being the chronology of the prosecution:-

“On the 26^th day of April, she was arrested and on the 22^nd day of August she was first brought up in District Court. The matter was adjourned a couple of times for her to take legal advice. In between, she changed her team of lawyers. On 29 October 2019, the defendant was brought again to the District Court, when she indicated to this court that she would plead guilty to Charge 2 (that is, the possession charge) and not guilty to Charge 1. The case was thus adjourned for trial to 10 February 2020.”

22.  Unfortunately, the trial date fell into what is now known as the GAP, the General Adjournment Period, in view of the public health concern over the pandemic.  It was not until the 3^rd day of January that the defendant’s lawyers wrote to indicate of her intended guilty plea.  The matter was brought up again on 24 April this year.  On that day, the defendant was absent but had informed her lawyer that she was indisposed.  Her bail was revoked so that she could attend compulsory medical treatment.  On 13 May this year, the case was again brought up for mention and the defendant indicated that she would plead guilty to the 1^st charge.

23.  The Court of Appeal has repeatedly indicated there is an overriding discretion but the sentencing court still has to take into account all the relevant circumstances of the case in order to adopt approach that is just to both sides.

24.  It is accepted that a defendant’s right of pleading is sacred.  She could choose to plead guilty to avail herself of all the advantages accorded to her by the law, namely, in addition to other mitigating circumstances, a 30-per-cent discount.  Or she can wait until the last moment, possibly to see (to which she is perfectly entitled) whether the prosecution can come up to proof.  In so doing she should know, at least her lawyers should have advised her, that she might lose some of those favourable factors.  She can take her chances, but she must bear the consequences in the event that the prosecution could prove its case.

25.  The defence counsel sought to persuade this court to exercise discretion in her favour, accord her with the full 30-per-cent discount.  The main ground put forward was the fundamental delay in furnishing a piece of incriminating evidence, namely a second fingerprint report prior to the date she indicated her plea of guilty.  The report was dated 22 August 2019 but the prosecution contended that he had obtained the same only on 30 October 2019. Therefore, there was no delay in advising the defence of the additional piece of evidence.

26.  The defence went so far as to contend that the prosecution had acted unfairly by withholding and/or delaying disclosure of the report. 

27.  But taking the whole set of circumstances into consideration, in particular the defendant had been staying in the flat, a one-room apartment, for over two months (there being no indication that anybody else had been living there); the dangerous drug was found in the room where she had her other personal belongings and that she had admitted to possession of the same, I do not really see how the additional piece of evidence could have added to the strength of the prosecution’s case and affected the defendant’s decision in her plea.

28.  Even without the additional fingerprint evidence, there was a very strong case against the defendant.  She had taken the chance after taking legal advice to decide to plead not guilty.  Then she should have been advised of the consequences that, by so doing, she would not be able to avail herself to the full discount.

29.  Defence counsel also mentioned that when the report was made available, he had been engaged in a rather important trial.  This is not a mitigating factor.

30.  For the reasons stated above, I would only accord the defendant with a 25-per-cent discount and reduce what amounts to what is originally a sentence order of 43 months to 32 months.  This is slightly more than a 25 per cent discount.