A A
B B
DCCC 838/2016
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 838 OF 2016 D
____________
E HKSAR E
v
F F
LOAIZA VARGAS GEOVANNY
G ____________ G
H
Before: HH Judge Dufton H
Date: 3 January 2017
I Present: Ms Jennifer Fok, SPP, of the Department of Justice, I
for HKSAR
J Mr Augustine Tong of Augustine C.Y. Tong & Co, J
assigned by the Director of Legal Aid, for the defendant
K Offences: (1) Trafficking in a dangerous drug (販運危險藥物) K
(2) Breach of condition of stay (違反逗留條件)
L L
REASONS FOR SENTENCE
M M
1. Loaiza Vargas Geovanny you have pleaded guilty to one
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charge of trafficking in 16.58 grammes of a powder containing 7.57
O grammes of cocaine, contrary to section 4 of the Dangerous Drugs O
Ordinance 1 and one charge of breach of condition of stay, contrary to
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section 41 of the Immigration Ordinance2.
Q Q
R R
S S
T 1 T
Cap 134.
2
Cap 115.
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2
A A
B B
2. In summary you arrived in Hong Kong from Colombia on 6
C March last year. You went to Macau on 28 March returning to Hong C
Kong on 30 March when you were permitted to stay as a visitor until 28
D D
June. In breach of your condition of stay you did not leave as required
E
and had by the time of your arrest overstayed 10 days. E
F 3. Your were arrested in the evening of 8 July having been seen F
by the police acting furtively at the staircase of The Centrium on
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Wyndham Street in Central. At about 8:03 p.m. PC 8091 intercepted you
H and conducted a search. H
I I
4. In your right front trouser pocket PC 8091 found a red packet
J containing sixteen resealable plastic bags, containing 4.54 grammes of J
cocaine. At the police station a further search was conducted. In the left
K K
rear pocket of your trousers the police found a box containing ten
L resealable plastic bags, containing 3.03 grammes of cocaine. On arrest L
you were also found in possession of HK$7,225 and two iPhones.
M M
Mitigation
N N
O 5. In passing sentence I have carefully considered everything O
said on your behalf by Mr Tong together with your letter of mitigation. I
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take into account you have a clear record in Hong Kong. This however
Q carries little weight where the offender is a visitor who has overstayed Q
and has committed serious crime.
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S S
T T
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3
A A
B B
Starting point
C C
6. In Attorney General v Pedro Nel Rojas the Court of Appeal
D equated for sentencing purposes cocaine with heroin3. In R v Lau Tak D
Ming the Court of Appeal laid down guidelines for trafficking in heroin.
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The court said that the sentence upon conviction after trial where the
F quantity of narcotic is up to 10 grammes is between 2 and 5 years F
imprisonment4.
G G
H 7. I am satisfied the proper starting point after trial for 7.57 H
grammes of cocaine based on quantity alone is 4 years and 3 months
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imprisonment.
J J
Aggravating feature
K K
8. Although you came to Hong Kong with sufficient funds I am
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told you agreed to deliver drugs because you were desperate for money to
M obtain a visa to go to China and buy goods for trading in Colombia. M
N 9. Resorting to trafficking in drugs to earn quick money is a N
O
gross abuse of the hospitality offered by Hong Kong. The offence being O
committed over three months after you first came to Hong Kong I am
P P
prepared to accept you did not come to Hong Kong to commit crime.
Q Q
R R
S S
T 3 T
[1994] 2 HKCLR 69.
4
[1990] 2 HKLR 370.
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4
A A
B B
10. In HKSAR v Aguilar Garcia Milner Javier the Court of
C Appeal said that the fact that the applicant was a visitor to Hong Kong C
was a factor to which the judge was entitled to have regard, as being in
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aggravation of the commission of the offence5.
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11. In the circumstances I increase the starting point by 3 months
F imprisonment to 4 years and 6 months imprisonment. Giving you full F
credit for your plea of guilty you are convicted and sentenced to 3 years
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imprisonment.
H H
Overstaying
I I
12. You had overstayed only 10 days. I am satisfied the proper
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starting point after trial is 21 days imprisonment. Giving you full credit
K for your plea of guilty you are convicted and sentenced to 14 days K
imprisonment.
L L
M 13. Although the two offences are entirely separate and distinct M
for which consecutive sentences may be imposed, having taken into
N N
account your status as a visitor in passing sentence on charge 1, I am
O satisfied a concurrent sentence is appropriate. You are convicted and O
sentenced to 14 days imprisonment concurrent to the sentence imposed
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on charge 1.
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R R
(D. J. DUFTON)
S S
District Judge
T T
5
CACC 485/2012 at §19.
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