DCCC1157/2018 HKSAR v. RESTREPO GONZALEZ SEBASTIAN - LawHero
DCCC1157/2018
HKSAR v. RESTREPO GONZALEZ SEBASTIAN
區域法院（刑事）HH Judge Casewell20/3/2019[2019] HKDC 593
DCCC1157/2018
A A
DCCC 1157/2018
[2019] HKDC 593
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 1157 OF 2018
C C
----------------------
D D
HKSAR
E v E
Restrepo Gonzalez Sebastian
F F
----------------------
G G
Before: HH Judge Casewell
Date: 21 March 2019 at 9.46 am
H Present: Ms Annie Lai, counsel on fiat, for HKSAR H
Mr Kamlesh A Sadhwani, instructed by MCA Lai
I
Solicitors LLP, for the defendant I
Offence: Trafficking in a dangerous drug (販運危險藥物)
J J
---------------------
K K
Reasons for Sentence
L L
---------------------
M 1. Mr Restrepo, the defendant, has pleaded guilty to a M
single charge of trafficking in a dangerous drug, the
N N
particulars being the offence had been committed on 14 June of
2018 in Causeway Bay. The narcotic content of the drugs seized
O O
from the defendant is 5.42 grammes of cocaine.
P P
2. The facts are quite simply stated and have been agreed
Q by the defendant. He was intercepted as a result of a stop-and- Q
search outside a premises of No 58, Percival Street in Causeway
R R
Bay. A search was conducted of the premises shortly afterwards,
and the search brought to light 22 plastic bags containing the
S S
powder, which was the dangerous drugs, found on a bed, some soda
T powder, some cash in the sum of over $61,000, some items which T
would be used in the trafficking of the drugs, such as
U U
CRT31/21.3.2019/ML 1 DCCC 1157/2018(1)/Sentence
V V
A transparent resealable bags, electronic scales and further A
plastic bags.
B B
3. The street value of the drugs seized was agreed at
C C
$12,608 and a narcotic content of 5.42 grammes found in a total
of 12.8 grammes of the powder, so it is about one-third in terms
D D
of its purity.
E E
4. The defendant made various admissions under caution,
F admitting he lived in the premises and he had the keys to those F
premises, and the defendant has admitted possessing the drug for
G G
the purpose of unlawful trafficking in it. Also of note, that at
the time of the commission of the offence, the defendant was a
H H
holder of a Form 8 under the Immigration Ordinance.
I I
5. Subsequent information from the Immigration Department
J has indicated the Form 8 Recognizance was served to the J
defendant pending removal arrangements subject to any legal
K impediment is their definition, so he was under a Form 8 to K
assist and facilitate his removal from Hong Kong.
L L
6. The defendant had submitted a written signification in
M M
respect of giving an indication for claiming non-refoulement
N protection, but that was not made out and has not been N
processed, so the defendant was not at the time of his being in
O Hong Kong a claimant from non-refoulement protection in Hong O
Kong.
P P
7. Dealing too with his personal situation, he is now
Q Q
aged 27. He is a native of Colombia, educated to secondary
R school education level in that country. He has no criminal R
convictions in Hong Kong. He arrived in Hong Kong in 2017, has
S no employment history, it is said, in Hong Kong. S
T T
8. In terms of his mitigation, the defendant was trying
at some point to study to become a lawyer, but was unsuccessful
U U
CRT31/21.3.2019/ML 2 DCCC 1157/2018(1)/Sentence
V V
A in that and has taken up a job of event promotion, and that is A
the reason, he says, that he came to Hong Kong on or around 7
B December 2017, trying to find work in the field of event B
management because of the number of music festivals that occur
C C
here.
D D
9. The defendant at the time of his arrest had overstayed
E and we know that he had informed the Immigration Department E
about his overstaying. We can see that from a letter that he
F produced. F
G G
10. The defendant, by his own admission, is a consumer and
has been a consumer of cocaine. Whether he is addicted to it or
H H
not is a question, but he is certainly a substantial consumer on
I
his own admission. His consumption of cocaine in Hong Kong, he I
said, came as a result of depression and his inability to find
J any legal employment in this city, and he says in mitigation J
that the drug itself was mainly for his own consumption and the
K balance of it for selling in order to sustain his habit of K
consuming cocaine.
L L
11. There is some support for that from a drug test taken
M M
in Lai Chi Kok Detention Centre shortly after the defendant’s
N arrest, which show him to be testing positive for cocaine. N
O 12. The defendant expresses remorse in mitigation and also O
in a letter he has written to the court.
P P
13. And, of course, it is also said in mitigation the
Q Q
defendant will be removed from Hong Kong once his sentence is
R completed and will resume his life with his own family in R
Colombia.
S S
14. Turning to the approach to sentencing in a case such
T T
as this, the trafficking of the drug cocaine is covered by
guideline sentencing. The defendant, having regard to the
U U
CRT31/21.3.2019/ML 3 DCCC 1157/2018(1)/Sentence
V V
A quantity of drug, falls into the starting point of between 2 to A
5 years’ imprisonment, which is for a quantity of the drug up to
B 10 -- of 10 grammes. So a starting point will be determined B
depending upon where the quantity of drug lies in relation to
C C
that starting point.
D D
15. I have been referred to a case called HKSAR v Yepes
E Santana, which is at 447/2017, where, for a similar quantity of E
cocaine, a starting point adopted by the court was 30 months’
F imprisonment. That would appear to be a calculation that is F
appropriate, given the range available to the court in the
G G
guideline.
H H
16. The defendant then adds in mitigation there are two
I
further mitigating factors. I
J 17. One is the claim by him that a portion of the drugs J
were for his own self-consumption. That is an available
K mitigating factor and the court can adjust the sentence to K
reflect the fact that not all the drugs were for trafficking.
L L
Where a significant portion of drugs is for the defendant’s own
consumption, a discount of between 10 to 25 per cent from the
M M
basic starting point can be appropriate. The court need not
N specify the relative amounts or proportions in making that N
decision.
O O
18. The final mitigating factor would be defendant’s plea
P P
of guilty.
Q Q
19. Before I turn to the actual calculation of sentence, I
R will deal with the question of whether there is an aggravating R
factor in this case. In the facts, the defendant is referred to
S as a Form 8 holder. In the case of Criminal Appeal HKSAR v S
Norena Gutierrez, CACC 319/2014, the fact that the defendant is
T T
a Form 8 holder and if possession of Form 8 is an aggravating
U U
CRT31/21.3.2019/ML 4 DCCC 1157/2018(1)/Sentence
V V
A factor by the defendant is considered in that case and can it be A
held to be an aggravating factor.
B B
20. The way in which the court has resolved that is on the
C C
basis that, where the defendant is a Form 8 holder and a claim
for non-refoulement is made, defendant is punished more heavily
D D
by virtue of the fact that an element of his culpability is the
E cause of harm to Hong Kong, to which Hong Kong would not E
otherwise be exposed but for the fact that it had allowed him to
F remain in Hong Kong and at liberty pending the determination of F
his Immigration claim.
G G
21. In fact, in this case, the defendant was at liberty
H H
pending the completion of removal arrangements for him, so he is
I
not in the same category as a Form 8 holder who has made an I
application for non-refoulement. So I find the aggravating
J factor set out in the court in that case is not appropriate to J
this defendant.
K K
22. Turning to the general calculation of sentence then, I
L L
will calculate the sentence as follows.
M M
23. I determine a starting point of 30 months’
N imprisonment. N
O 24. I do find the defendant would have consumed what is O
described as a significant portion of the drug for his own
P P
consumption. I base this on the fact the defendant can be seen
to be a drug consumer and his only means of support for that
Q Q
consumption of drug would be by selling at least a portion of
R the drug. R
S 25. I shall deduct from that original starting point a S
total of 10 per cent, which is 3 months, taking a starting point
T T
now of 27 months’ imprisonment.
U U
CRT31/21.3.2019/ML 5 DCCC 1157/2018(1)/Sentence
V V
A 26. The defendant is entitled to one-third deduction from A
that, which leads to a final sentence of 18 months’
B imprisonment, and that is the sentence that will be imposed by B
the court: 18 months’ imprisonment.
C C
D D
E E
F (T Casewell) F
District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/21.3.2019/ML 6 DCCC 1157/2018(1)/Sentence
V V
A A
DCCC 1157/2018
[2019] HKDC 593
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 1157 OF 2018
C C
----------------------
D D
HKSAR
E v E
Restrepo Gonzalez Sebastian
F F
----------------------
G G
Before: HH Judge Casewell
Date: 21 March 2019 at 9.46 am
H Present: Ms Annie Lai, counsel on fiat, for HKSAR H
Mr Kamlesh A Sadhwani, instructed by MCA Lai
I
Solicitors LLP, for the defendant I
Offence: Trafficking in a dangerous drug (販運危險藥物)
J J
---------------------
K K
Reasons for Sentence
L L
---------------------
M 1. Mr Restrepo, the defendant, has pleaded guilty to a M
single charge of trafficking in a dangerous drug, the
N N
particulars being the offence had been committed on 14 June of
2018 in Causeway Bay. The narcotic content of the drugs seized
O O
from the defendant is 5.42 grammes of cocaine.
P P
2. The facts are quite simply stated and have been agreed
Q by the defendant. He was intercepted as a result of a stop-and- Q
search outside a premises of No 58, Percival Street in Causeway
R R
Bay. A search was conducted of the premises shortly afterwards,
and the search brought to light 22 plastic bags containing the
S S
powder, which was the dangerous drugs, found on a bed, some soda
T powder, some cash in the sum of over $61,000, some items which T
would be used in the trafficking of the drugs, such as
U U
CRT31/21.3.2019/ML 1 DCCC 1157/2018(1)/Sentence
V V
A transparent resealable bags, electronic scales and further A
plastic bags.
B B
3. The street value of the drugs seized was agreed at
C C
$12,608 and a narcotic content of 5.42 grammes found in a total
of 12.8 grammes of the powder, so it is about one-third in terms
D D
of its purity.
E E
4. The defendant made various admissions under caution,
F admitting he lived in the premises and he had the keys to those F
premises, and the defendant has admitted possessing the drug for
G G
the purpose of unlawful trafficking in it. Also of note, that at
the time of the commission of the offence, the defendant was a
H H
holder of a Form 8 under the Immigration Ordinance.
I I
5. Subsequent information from the Immigration Department
J has indicated the Form 8 Recognizance was served to the J
defendant pending removal arrangements subject to any legal
K impediment is their definition, so he was under a Form 8 to K
assist and facilitate his removal from Hong Kong.
L L
6. The defendant had submitted a written signification in
M M
respect of giving an indication for claiming non-refoulement
N protection, but that was not made out and has not been N
processed, so the defendant was not at the time of his being in
O Hong Kong a claimant from non-refoulement protection in Hong O
Kong.
P P
7. Dealing too with his personal situation, he is now
Q Q
aged 27. He is a native of Colombia, educated to secondary
R school education level in that country. He has no criminal R
convictions in Hong Kong. He arrived in Hong Kong in 2017, has
S no employment history, it is said, in Hong Kong. S
T T
8. In terms of his mitigation, the defendant was trying
at some point to study to become a lawyer, but was unsuccessful
U U
CRT31/21.3.2019/ML 2 DCCC 1157/2018(1)/Sentence
V V
A in that and has taken up a job of event promotion, and that is A
the reason, he says, that he came to Hong Kong on or around 7
B December 2017, trying to find work in the field of event B
management because of the number of music festivals that occur
C C
here.
D D
9. The defendant at the time of his arrest had overstayed
E and we know that he had informed the Immigration Department E
about his overstaying. We can see that from a letter that he
F produced. F
G G
10. The defendant, by his own admission, is a consumer and
has been a consumer of cocaine. Whether he is addicted to it or
H H
not is a question, but he is certainly a substantial consumer on
I
his own admission. His consumption of cocaine in Hong Kong, he I
said, came as a result of depression and his inability to find
J any legal employment in this city, and he says in mitigation J
that the drug itself was mainly for his own consumption and the
K balance of it for selling in order to sustain his habit of K
consuming cocaine.
L L
11. There is some support for that from a drug test taken
M M
in Lai Chi Kok Detention Centre shortly after the defendant’s
N arrest, which show him to be testing positive for cocaine. N
O 12. The defendant expresses remorse in mitigation and also O
in a letter he has written to the court.
P P
13. And, of course, it is also said in mitigation the
Q Q
defendant will be removed from Hong Kong once his sentence is
R completed and will resume his life with his own family in R
Colombia.
S S
14. Turning to the approach to sentencing in a case such
T T
as this, the trafficking of the drug cocaine is covered by
guideline sentencing. The defendant, having regard to the
U U
CRT31/21.3.2019/ML 3 DCCC 1157/2018(1)/Sentence
V V
A quantity of drug, falls into the starting point of between 2 to A
5 years’ imprisonment, which is for a quantity of the drug up to
B 10 -- of 10 grammes. So a starting point will be determined B
depending upon where the quantity of drug lies in relation to
C C
that starting point.
D D
15. I have been referred to a case called HKSAR v Yepes
E Santana, which is at 447/2017, where, for a similar quantity of E
cocaine, a starting point adopted by the court was 30 months’
F imprisonment. That would appear to be a calculation that is F
appropriate, given the range available to the court in the
G G
guideline.
H H
16. The defendant then adds in mitigation there are two
I
further mitigating factors. I
J 17. One is the claim by him that a portion of the drugs J
were for his own self-consumption. That is an available
K mitigating factor and the court can adjust the sentence to K
reflect the fact that not all the drugs were for trafficking.
L L
Where a significant portion of drugs is for the defendant’s own
consumption, a discount of between 10 to 25 per cent from the
M M
basic starting point can be appropriate. The court need not
N specify the relative amounts or proportions in making that N
decision.
O O
18. The final mitigating factor would be defendant’s plea
P P
of guilty.
Q Q
19. Before I turn to the actual calculation of sentence, I
R will deal with the question of whether there is an aggravating R
factor in this case. In the facts, the defendant is referred to
S as a Form 8 holder. In the case of Criminal Appeal HKSAR v S
Norena Gutierrez, CACC 319/2014, the fact that the defendant is
T T
a Form 8 holder and if possession of Form 8 is an aggravating
U U
CRT31/21.3.2019/ML 4 DCCC 1157/2018(1)/Sentence
V V
A factor by the defendant is considered in that case and can it be A
held to be an aggravating factor.
B B
20. The way in which the court has resolved that is on the
C C
basis that, where the defendant is a Form 8 holder and a claim
for non-refoulement is made, defendant is punished more heavily
D D
by virtue of the fact that an element of his culpability is the
E cause of harm to Hong Kong, to which Hong Kong would not E
otherwise be exposed but for the fact that it had allowed him to
F remain in Hong Kong and at liberty pending the determination of F
his Immigration claim.
G G
21. In fact, in this case, the defendant was at liberty
H H
pending the completion of removal arrangements for him, so he is
I
not in the same category as a Form 8 holder who has made an I
application for non-refoulement. So I find the aggravating
J factor set out in the court in that case is not appropriate to J
this defendant.
K K
22. Turning to the general calculation of sentence then, I
L L
will calculate the sentence as follows.
M M
23. I determine a starting point of 30 months’
N imprisonment. N
O 24. I do find the defendant would have consumed what is O
described as a significant portion of the drug for his own
P P
consumption. I base this on the fact the defendant can be seen
to be a drug consumer and his only means of support for that
Q Q
consumption of drug would be by selling at least a portion of
R the drug. R
S 25. I shall deduct from that original starting point a S
total of 10 per cent, which is 3 months, taking a starting point
T T
now of 27 months’ imprisonment.
U U
CRT31/21.3.2019/ML 5 DCCC 1157/2018(1)/Sentence
V V
A 26. The defendant is entitled to one-third deduction from A
that, which leads to a final sentence of 18 months’
B imprisonment, and that is the sentence that will be imposed by B
the court: 18 months’ imprisonment.
C C
D D
E E
F (T Casewell) F
District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/21.3.2019/ML 6 DCCC 1157/2018(1)/Sentence
V V