A A
B B
DCCC 950/2020
[2021] HKDC 312
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 950 OF 2020 E
F F
------------------------------
G G
HKSAR
H
v H
GOMEZ BECERRA Deiber
I I
------------------------------
J J
Before: His Honour Judge Sham
K K
Date: 11 March 2021
L Present: Mr. Paulinus Lo, Counsel-on-fiat, for HKSAR L
Mr. Christopher Gounds, instructed by Messrs. H.T. Ngan &
M M
Co., assigned by the Director of Legal Aid for the Defendant.
N Offence: [1] & [2] Trafficking in a dangerous drug (入屋犯法罪) N
[3] Breach of condition of stay (違反逗留條件)
O O
P P
---------------------------------------
Q
REASONS FOR SENTENCE Q
---------------------------------------
R R
S S
1. The Defendant, a 33-year-old Columbian overstayer, pleaded
T T
guilty before me to 3 counts of offence:
U U
V V
-2-
A A
B B
Charge 1- drug trafficking1 (4.45g of a solid containing 0.95g of cocaine);
C Charge 2- drug trafficking (56.5g of a solid containing 9.85g of cocaine); C
2
Charge 3- overstaying for nearly 13 months.
D D
E 2. On the night of 1 June 2020, police officers stopped the E
defendant for questioning while he was coming out of a building in Jaffe
F F
Road, Wan Chai, where he lived. He was then brought back to his home
G on the 5th floor for a search. G
H H
3. Once inside his home, the officers first conducted a body
I search on him and found two bags of cocaine underneath his underpants I
(one containing 5 plastic bags with a total of 2.85g solid containing 0.71g
J J
of cocaine and another 3 plastic bags with a total of 1.6g solid containing
K 0.24g of cocaine). K
L L
4. Further drugs were discovered from the defendant’s wardrobe
M in his bedroom, here the officers found a zipper bag with two plastic bags M
of cocaine in it (one containing 2 plastic bags with a total of 42.2g solid
N N
containing 6.61g of cocaine and another 25 plastic bags with a total of
O 14.3g solid containing 3.24g of cocaine). O
P P
5. Other things found included two plastic bags containing
Q smaller empty plastic bags - one with 477 and the other 74, and two Q
electronic scales. Cash of different currencies was also found - HKD
R R
$10,690, USD $1,930, GBP 20 and EURO 50.
S S
T T
1
Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134
2
Contrary to section 41 of the Immigration Ordinance Cap 115
U U
V V
-3-
A A
B B
6. The immigration records showed that the defendant entered
C Hong Kong on 7 February 2019 and was only permitted to stay as a visitor C
for three months until 8 May 2019, but he remained here thereafter in
D D
breach of his condition of stay.
E E
7. The defendant has one prior conviction similar to charge 3 –
F F
overstaying - for which he was given a prison term of 8 weeks on 22
G November 2017. G
H H
8. The court heard that the defendant went to university in
I Columbia majoring in electronic technology and has graduated from it. I
Back in Columbia, he has a 7-year-old son and a retired mother; here in
J J
Hong Kong, he lives alone and is out of job relying on financial support
K from his family in Columbia. K
L L
9. Counsel for the defendant, Mr Grounds, submitted that the
M cocaine found on the defendant came from those in the premises, and the M
overall starting point on the cocaine charges should be no higher than 5
N N
years so that the sentences on charges 1 & 2 should run concurrently.
O O
10. Mr. Grounds said, “The defendant has had time to think
P P
matters through and is filled with remorse. He maintains he is now a
Q different man and acknowledges his errors. He also wishes to apologise to Q
society in Hong Kong for his acts. Being held in custody on remand has
R R
made him realise the dangers that drugs pose.”
S S
11. One final matter put forward by the defence is “part
T T
consumption”. The defendant claimed he has been a cocaine abuser for
U U
V V
-4-
A A
B B
many years, Mr. Grounds said some of the drugs were for the defendant’s
C own consumption and urged the court to give a further reduction in C
sentence.
D D
E 12. I have clarified with Mr. Grounds that the defendant was only E
talking about a small part of the drugs for personal use. In Kong Tat Lung
F F
CACC 27/2016, in dealing with part consumption, the Appellate Court has
G this to say: G
H “69. Where the position of the defendant is that only part of H
the dangerous drug rather than a substantial part of the
dangerous drug was for his own consumption, the court can
I I
then according to the circumstances in individual cases
exercise its discretion by deciding whether the defendant
J should be given any reduction in sentence for that reason J
and the extent of that reduction.
K 70. We must emphasise that in the above circumstances, it K
is entirely in the judge’s discretion according to the
L circumstances of each individual case whether to give the L
defendant any reduction in sentence and extent of that
reduction on the basis that the defendant intended to use a
M small part of the dangerous drugs for his own consumption. M
Under normal circumstances, it is not appropriate for the
defendant to use that as a ground of appeal to ask for further
N N
reduction from the Court of Appeal.”
O O
13. First, the defendant was out of job in Hong Kong, although he
P said he relied on financial support from home, there he has a 7-year-old P
son and a retired mother, I doubt very much they could support the
Q Q
defendant. His only source of income here, seems to me, is drug trafficking.
R Second, there is nothing to substantiate his claim of a cocaine abuser such R
as urine test. Simply put, I am not prepared to reduce the sentence any
S S
further on this ground.
T T
U U
V V
-5-
A A
B B
14. There are sentencing guidelines for trafficking in this type of
C drugs - trafficking up to 10g, 2 to 5 years; between 10g - 50g, 5 to 8 years. C
Given the amounts he admitted trafficking, for charge 1, I take 27 months
D D
as the starting point while for charge 2, 60 months. Insofar as charge 3 is
E concerned, this is his second offence, I take 3 months as the starting point. E
F F
15. His pleas are timely so that he is entitled to a full 1/3 discount.
G After giving the appropriate discount, the individual sentences are as G
follows:
H H
Charge 1- 18 months;
I I
Charge 2- 40 months;
J Charge 3- 2 months. J
K K
16. Considering the totality principle, I order that charge 1 be run
L concurrently with charge 2 but consecutively to charge 3, the total term is L
one of 42 months’ imprisonment.
M M
N N
O O
P ( Sham ) P
District Judge
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 950/2020
[2021] HKDC 312
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 950 OF 2020 E
F F
------------------------------
G G
HKSAR
H
v H
GOMEZ BECERRA Deiber
I I
------------------------------
J J
Before: His Honour Judge Sham
K K
Date: 11 March 2021
L Present: Mr. Paulinus Lo, Counsel-on-fiat, for HKSAR L
Mr. Christopher Gounds, instructed by Messrs. H.T. Ngan &
M M
Co., assigned by the Director of Legal Aid for the Defendant.
N Offence: [1] & [2] Trafficking in a dangerous drug (入屋犯法罪) N
[3] Breach of condition of stay (違反逗留條件)
O O
P P
---------------------------------------
Q
REASONS FOR SENTENCE Q
---------------------------------------
R R
S S
1. The Defendant, a 33-year-old Columbian overstayer, pleaded
T T
guilty before me to 3 counts of offence:
U U
V V
-2-
A A
B B
Charge 1- drug trafficking1 (4.45g of a solid containing 0.95g of cocaine);
C Charge 2- drug trafficking (56.5g of a solid containing 9.85g of cocaine); C
2
Charge 3- overstaying for nearly 13 months.
D D
E 2. On the night of 1 June 2020, police officers stopped the E
defendant for questioning while he was coming out of a building in Jaffe
F F
Road, Wan Chai, where he lived. He was then brought back to his home
G on the 5th floor for a search. G
H H
3. Once inside his home, the officers first conducted a body
I search on him and found two bags of cocaine underneath his underpants I
(one containing 5 plastic bags with a total of 2.85g solid containing 0.71g
J J
of cocaine and another 3 plastic bags with a total of 1.6g solid containing
K 0.24g of cocaine). K
L L
4. Further drugs were discovered from the defendant’s wardrobe
M in his bedroom, here the officers found a zipper bag with two plastic bags M
of cocaine in it (one containing 2 plastic bags with a total of 42.2g solid
N N
containing 6.61g of cocaine and another 25 plastic bags with a total of
O 14.3g solid containing 3.24g of cocaine). O
P P
5. Other things found included two plastic bags containing
Q smaller empty plastic bags - one with 477 and the other 74, and two Q
electronic scales. Cash of different currencies was also found - HKD
R R
$10,690, USD $1,930, GBP 20 and EURO 50.
S S
T T
1
Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134
2
Contrary to section 41 of the Immigration Ordinance Cap 115
U U
V V
-3-
A A
B B
6. The immigration records showed that the defendant entered
C Hong Kong on 7 February 2019 and was only permitted to stay as a visitor C
for three months until 8 May 2019, but he remained here thereafter in
D D
breach of his condition of stay.
E E
7. The defendant has one prior conviction similar to charge 3 –
F F
overstaying - for which he was given a prison term of 8 weeks on 22
G November 2017. G
H H
8. The court heard that the defendant went to university in
I Columbia majoring in electronic technology and has graduated from it. I
Back in Columbia, he has a 7-year-old son and a retired mother; here in
J J
Hong Kong, he lives alone and is out of job relying on financial support
K from his family in Columbia. K
L L
9. Counsel for the defendant, Mr Grounds, submitted that the
M cocaine found on the defendant came from those in the premises, and the M
overall starting point on the cocaine charges should be no higher than 5
N N
years so that the sentences on charges 1 & 2 should run concurrently.
O O
10. Mr. Grounds said, “The defendant has had time to think
P P
matters through and is filled with remorse. He maintains he is now a
Q different man and acknowledges his errors. He also wishes to apologise to Q
society in Hong Kong for his acts. Being held in custody on remand has
R R
made him realise the dangers that drugs pose.”
S S
11. One final matter put forward by the defence is “part
T T
consumption”. The defendant claimed he has been a cocaine abuser for
U U
V V
-4-
A A
B B
many years, Mr. Grounds said some of the drugs were for the defendant’s
C own consumption and urged the court to give a further reduction in C
sentence.
D D
E 12. I have clarified with Mr. Grounds that the defendant was only E
talking about a small part of the drugs for personal use. In Kong Tat Lung
F F
CACC 27/2016, in dealing with part consumption, the Appellate Court has
G this to say: G
H “69. Where the position of the defendant is that only part of H
the dangerous drug rather than a substantial part of the
dangerous drug was for his own consumption, the court can
I I
then according to the circumstances in individual cases
exercise its discretion by deciding whether the defendant
J should be given any reduction in sentence for that reason J
and the extent of that reduction.
K 70. We must emphasise that in the above circumstances, it K
is entirely in the judge’s discretion according to the
L circumstances of each individual case whether to give the L
defendant any reduction in sentence and extent of that
reduction on the basis that the defendant intended to use a
M small part of the dangerous drugs for his own consumption. M
Under normal circumstances, it is not appropriate for the
defendant to use that as a ground of appeal to ask for further
N N
reduction from the Court of Appeal.”
O O
13. First, the defendant was out of job in Hong Kong, although he
P said he relied on financial support from home, there he has a 7-year-old P
son and a retired mother, I doubt very much they could support the
Q Q
defendant. His only source of income here, seems to me, is drug trafficking.
R Second, there is nothing to substantiate his claim of a cocaine abuser such R
as urine test. Simply put, I am not prepared to reduce the sentence any
S S
further on this ground.
T T
U U
V V
-5-
A A
B B
14. There are sentencing guidelines for trafficking in this type of
C drugs - trafficking up to 10g, 2 to 5 years; between 10g - 50g, 5 to 8 years. C
Given the amounts he admitted trafficking, for charge 1, I take 27 months
D D
as the starting point while for charge 2, 60 months. Insofar as charge 3 is
E concerned, this is his second offence, I take 3 months as the starting point. E
F F
15. His pleas are timely so that he is entitled to a full 1/3 discount.
G After giving the appropriate discount, the individual sentences are as G
follows:
H H
Charge 1- 18 months;
I I
Charge 2- 40 months;
J Charge 3- 2 months. J
K K
16. Considering the totality principle, I order that charge 1 be run
L concurrently with charge 2 but consecutively to charge 3, the total term is L
one of 42 months’ imprisonment.
M M
N N
O O
P ( Sham ) P
District Judge
Q Q
R R
S S
T T
U U
V V