DCCC813/2018 HKSAR v. ARANGO CASTANO JOHNY RICARDO - LawHero
DCCC813/2018
HKSAR v. ARANGO CASTANO JOHNY RICARDO
區域法院（刑事）Deputy District Judge Winnie Lau15/7/2019[2019] HKDC 1056
DCCC813/2018
A A
B B
DCCC 813/2018
C [2019] HKDC 1056 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 813 OF 2018
F F
G ---------------------------------------- G
HKSAR
H H
v
I ARANGO CASTANO Johny Ricardo I
----------------------------------------
J J
K Before: Deputy District Judge Winnie Lau K
Date: 16 July 2019
L L
Present: Miss Chan Wing Sum, Crystal, Public Prosecutor of the
M Department of Justice, for HKSAR M
Mr Kamlesh Arjan Sadhwani, instructed by Littlewoods,
N N
assigned by the Director of Legal Aid, for the defendant
O Offence: [1] Trafficking in a dangerous drug (販運危險藥物) O
P
[2] Remaining in Hong Kong without the authority of the P
Director of Immigration after having landed unlawfully in
Q Q
Hong Kong (在香港非法入境後未得入境事務處處長授
R 權而留在香港) R
S S
---------------------------------------
T REASONS FOR SENTENCE T
---------------------------------------
U U
V V
-2-
A A
B B
C 1. Defendant pleaded guilty to one charge of trafficking in a C
dangerous drug (Charge 1), contrary to section 4(1)(a) and (3) of the
D D
Dangerous Drugs Ordinance, Cap 134. The defendant also faces another
E charge of illegal remaining (Charge 2), contrary to section 38(1)(b) of the E
Immigration Ordinance, Cap 115. However, this charge has been
F F
adjourned till after the completion of his torture claim. So I only deal with
G the sentence in relation to Charge 1, that is the trafficking in a dangerous G
drug.
H H
I Facts I
J J
2. At around 11:40 pm on 21 July 2018, PC 19374 mounted an
K anti-narcotics operation in the vicinity of Lan Kwai Fong, Central. At K
about 11:51 pm, PC 19374 spotted the defendant looking suspicious. He
L L
then intercepted the defendant outside the Ground Floor, 49 Hollywood
M Road, Central, Hong Kong. He revealed his police identity and conducted M
a search on the defendant’s body. Upon being searched, the defendant
N N
turned around to flee and put his right hand into the right rear pocket of his
O jeans. PC 19374 intercepted the defendant again and continued with the O
body search. Six packets of suspected dangerous drugs (Exhibit 1) were
P P
found in the defendant’s right hand. Cash of HK$780 was also found on
Q the defendant. PC 19374 arrested the defendant for trafficking in a Q
dangerous drug.
R R
S 3. In the presence of Spanish and English interpreters, the S
defendant at a video-recorded interview admitted under caution, inter alia,
T T
the following:-
U U
V V
-3-
A A
B B
a) Exhibit 1 belonged to him and he was a drug user. He
C knew that Exhibit 1 was cocaine; C
b) He bought Exhibit 1 from an unknown male in Lan
D D
Kwai Fong at the price of HK$5,000;
E c) He would consume all six packets over the night as he E
would share Exhibit 1 with the girls he met;
F F
d) He had US$5,000 when he came to Hong Kong, and he
G had almost used up his money; G
e) He had illegally entered Hong Kong from Mainland
H H
China less than 2 months ago.
I I
4. Exhibit 1 was later confirmed by the Government Chemist to
J J
be a total of 3.65 grammes of a solid containing 1.98 grammes of cocaine.
K K
5. The estimated street value of Exhibit 1 in July 2018 was
L L
around HK$3,785.
M M
6. At the material time, the defendant possessed Exhibit 1 for the
N N
purpose of trafficking.
O O
Criminal record
P P
Q 7. The defendant was sentenced by the court to 6 weeks’ Q
imprisonment suspended for 3 years in November 2015 for an offence of
R R
breach of condition of stay. This was his only conviction record.
S S
T T
U U
V V
-4-
A A
B B
Mitigation
C C
8. The defendant, aged 34, is single and was born in Colombia.
D D
He received education up to secondary level in Colombia. His father
E manages a bus and his mother is a clothes hawker. His younger brother, E
aged 18, has been suffering from depression for the last 10 years. His
F F
grandmother also resides with his family.
G G
9. In Colombia, he worked as a merchant dealing in spare motor
H H
cycle parts and earned about US$1,500 per month. He used to contribute
I half of his income to his family. He has been addicted to drugs since 2011. I
He was admitted to the rehabilitation centre for drugs and also assisted
J J
others to join the rehabilitation process.
K K
10. In 2018, his life was in danger in Colombia so he escaped to
L Hong Kong. He only became a NCF claimant after the commission of the L
present charge.
M M
N N
11. Majority of the subject cocaine was for his own consumption.
O
However, he would share some of the subject cocaine with the girls he met, O
i.e., social trafficking. Defendant’s urine tests taken after his arrest showed
P P
positive results in relation to cocaine and other drugs.
Q Q
12. The defendant is remorseful and has learned a serious lesson.
R He promises to stay away from dangerous drugs. R
S S
13. A mitigation letter written by the defendant’s mother together
T with supporting documents was submitted by the Defence for my T
consideration. As revealed in her letter and the documents enclosed, the
U U
V V
-5-
A A
B B
defendant was a drug addict and had been sent to a rehabilitation centre to
C deal with his drug problems. C
D D
14. Mr Sadhwani also relies upon HKSAR v Wong Suet Hau [2002]
E 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, HKSAR E
v Cheng Man Bor, CACC 234/2007, SOJ v Chan Chun Fai [2011] 3
F F
HKLRD 116 in support of the mitigation on self-consumption and asked
G me to consider imposing a sentence which would enable his immediate G
release.
H H
I
15. Mr Sadhwani accepts that at the time of the present offence I
the defendant was in breach of a suspended sentence. However, he urges
J J
me not to activate it as the present offence was not a similar offence and
K there was a long time lapse between the passing of the suspended sentence K
and the commission of the present offence.
L L
M Sentence M
N N
16. I have carefully considered everything said by Mr Sadhwani
O in mitigation on behalf of the defendant. O
P P
17. The starting point upon conviction after trial for trafficking in
Q cocaine up to 10 grammes is between 2 years’ and 5 years’ imprisonment Q
(see AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming &
R R
Others [1990] 2 HKLR 370). Trafficking in 1.98 grammes of cocaine will
S therefore attract a starting point of 31 months. S
T T
U U
V V
-6-
A A
B B
18. At the time of the present offence, the defendant was in breach
C of the suspended sentence imposed on him in 2015. However, he has no C
similar conviction and the offence relating to the suspended sentence was
D D
of a different nature. Therefore, I will not consider his breach of the
E suspended sentence as an aggravating factor. E
F F
19. On the issue of self-consumption, in deciding how much
G weight should be attached to the claim, I have carefully considered the G
authorities relied upon by the Defence and HKSAR v Choi Chun Wo [2018]
H H
5 HKLRD 717.
I I
20. The Prosecution’s stance is that there is no evidence to rebut
J this issue. J
K K
21. I have made it clear to the Defence that I am not prepared to
L accept a bare assertion from the bar table that a significant proportion of L
the subject cocaine would be consumed by the defendant without any
M M
credible factual evidence on the amount of consumption. After reading the
N case of Choi Chun Wo provided by the Prosecution, Mr Sadhwani accepts N
this to be the legal position. As no evidence would be called by the defence
O O
to substantiate the issue of significant proportion, Mr Sadhwani accepts
P that it would be unrealistic to ask the court to consider on this basis. P
Q Q
22. As the subject cocaine was separately packed (see also the
R photograph provided by the Prosecution) and he was going to share those R
drugs with the girls he met that evening, I do not consider that a significant
S S
proportion would be consumed by him.
T T
U U
V V
-7-
A A
B B
23. However, in light of the urine test results, his statement to the
C police under caution and the supporting document, i.e., the certificate C
issued by the rehabilitation centre in question, confirming that the
D D
defendant was a drug addict and was accepted by their centre for
E rehabilitation, I am prepared to accept that the defendant is a drug E
consumer and some of the subject cocaine might be consumed by him.
F F
G 24. Having regard to all the circumstances of the arrest, the latent G
risk factor and the fact the possession of drugs carries a sentence in any
H H
event, I am satisfied that the starting point of 31 months should be reduced
I by 2.5 months to 28.5 months. I
J 25. Apart from his guilty plea, I do not see any other mitigating J
factors which justify further deductions. I sentence the defendant to 19
K K
months’ imprisonment for the present offence.
L L
26. As to his breach of suspended sentence, I note that at the time
M M
of the present offence there were still more than 3 months to go before the
N N
end of the operational period. In my view, it was not a short period. In
O
view of all the circumstances which have arisen since the suspended O
sentence was passed, including the nature and the facts of the present
P P
offence, I do not consider it unjust to activate the 6 weeks’ imprisonment
Q in full. I also do not see any reason including matters advanced in Q
mitigation why I should not activate it in full. I therefore order the 6 weeks’
R R
imprisonment to run consecutively to 19 months’ imprisonment for the
S present offence making a total of 19 months and 6 weeks’ imprisonment. S
T ( Winnie Lau ) T
Deputy District Judge
U U
V V
A A
B B
DCCC 813/2018
C [2019] HKDC 1056 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 813 OF 2018
F F
G ---------------------------------------- G
HKSAR
H H
v
I ARANGO CASTANO Johny Ricardo I
----------------------------------------
J J
K Before: Deputy District Judge Winnie Lau K
Date: 16 July 2019
L L
Present: Miss Chan Wing Sum, Crystal, Public Prosecutor of the
M Department of Justice, for HKSAR M
Mr Kamlesh Arjan Sadhwani, instructed by Littlewoods,
N N
assigned by the Director of Legal Aid, for the defendant
O Offence: [1] Trafficking in a dangerous drug (販運危險藥物) O
P
[2] Remaining in Hong Kong without the authority of the P
Director of Immigration after having landed unlawfully in
Q Q
Hong Kong (在香港非法入境後未得入境事務處處長授
R 權而留在香港) R
S S
---------------------------------------
T REASONS FOR SENTENCE T
---------------------------------------
U U
V V
-2-
A A
B B
C 1. Defendant pleaded guilty to one charge of trafficking in a C
dangerous drug (Charge 1), contrary to section 4(1)(a) and (3) of the
D D
Dangerous Drugs Ordinance, Cap 134. The defendant also faces another
E charge of illegal remaining (Charge 2), contrary to section 38(1)(b) of the E
Immigration Ordinance, Cap 115. However, this charge has been
F F
adjourned till after the completion of his torture claim. So I only deal with
G the sentence in relation to Charge 1, that is the trafficking in a dangerous G
drug.
H H
I Facts I
J J
2. At around 11:40 pm on 21 July 2018, PC 19374 mounted an
K anti-narcotics operation in the vicinity of Lan Kwai Fong, Central. At K
about 11:51 pm, PC 19374 spotted the defendant looking suspicious. He
L L
then intercepted the defendant outside the Ground Floor, 49 Hollywood
M Road, Central, Hong Kong. He revealed his police identity and conducted M
a search on the defendant’s body. Upon being searched, the defendant
N N
turned around to flee and put his right hand into the right rear pocket of his
O jeans. PC 19374 intercepted the defendant again and continued with the O
body search. Six packets of suspected dangerous drugs (Exhibit 1) were
P P
found in the defendant’s right hand. Cash of HK$780 was also found on
Q the defendant. PC 19374 arrested the defendant for trafficking in a Q
dangerous drug.
R R
S 3. In the presence of Spanish and English interpreters, the S
defendant at a video-recorded interview admitted under caution, inter alia,
T T
the following:-
U U
V V
-3-
A A
B B
a) Exhibit 1 belonged to him and he was a drug user. He
C knew that Exhibit 1 was cocaine; C
b) He bought Exhibit 1 from an unknown male in Lan
D D
Kwai Fong at the price of HK$5,000;
E c) He would consume all six packets over the night as he E
would share Exhibit 1 with the girls he met;
F F
d) He had US$5,000 when he came to Hong Kong, and he
G had almost used up his money; G
e) He had illegally entered Hong Kong from Mainland
H H
China less than 2 months ago.
I I
4. Exhibit 1 was later confirmed by the Government Chemist to
J J
be a total of 3.65 grammes of a solid containing 1.98 grammes of cocaine.
K K
5. The estimated street value of Exhibit 1 in July 2018 was
L L
around HK$3,785.
M M
6. At the material time, the defendant possessed Exhibit 1 for the
N N
purpose of trafficking.
O O
Criminal record
P P
Q 7. The defendant was sentenced by the court to 6 weeks’ Q
imprisonment suspended for 3 years in November 2015 for an offence of
R R
breach of condition of stay. This was his only conviction record.
S S
T T
U U
V V
-4-
A A
B B
Mitigation
C C
8. The defendant, aged 34, is single and was born in Colombia.
D D
He received education up to secondary level in Colombia. His father
E manages a bus and his mother is a clothes hawker. His younger brother, E
aged 18, has been suffering from depression for the last 10 years. His
F F
grandmother also resides with his family.
G G
9. In Colombia, he worked as a merchant dealing in spare motor
H H
cycle parts and earned about US$1,500 per month. He used to contribute
I half of his income to his family. He has been addicted to drugs since 2011. I
He was admitted to the rehabilitation centre for drugs and also assisted
J J
others to join the rehabilitation process.
K K
10. In 2018, his life was in danger in Colombia so he escaped to
L Hong Kong. He only became a NCF claimant after the commission of the L
present charge.
M M
N N
11. Majority of the subject cocaine was for his own consumption.
O
However, he would share some of the subject cocaine with the girls he met, O
i.e., social trafficking. Defendant’s urine tests taken after his arrest showed
P P
positive results in relation to cocaine and other drugs.
Q Q
12. The defendant is remorseful and has learned a serious lesson.
R He promises to stay away from dangerous drugs. R
S S
13. A mitigation letter written by the defendant’s mother together
T with supporting documents was submitted by the Defence for my T
consideration. As revealed in her letter and the documents enclosed, the
U U
V V
-5-
A A
B B
defendant was a drug addict and had been sent to a rehabilitation centre to
C deal with his drug problems. C
D D
14. Mr Sadhwani also relies upon HKSAR v Wong Suet Hau [2002]
E 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, HKSAR E
v Cheng Man Bor, CACC 234/2007, SOJ v Chan Chun Fai [2011] 3
F F
HKLRD 116 in support of the mitigation on self-consumption and asked
G me to consider imposing a sentence which would enable his immediate G
release.
H H
I
15. Mr Sadhwani accepts that at the time of the present offence I
the defendant was in breach of a suspended sentence. However, he urges
J J
me not to activate it as the present offence was not a similar offence and
K there was a long time lapse between the passing of the suspended sentence K
and the commission of the present offence.
L L
M Sentence M
N N
16. I have carefully considered everything said by Mr Sadhwani
O in mitigation on behalf of the defendant. O
P P
17. The starting point upon conviction after trial for trafficking in
Q cocaine up to 10 grammes is between 2 years’ and 5 years’ imprisonment Q
(see AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming &
R R
Others [1990] 2 HKLR 370). Trafficking in 1.98 grammes of cocaine will
S therefore attract a starting point of 31 months. S
T T
U U
V V
-6-
A A
B B
18. At the time of the present offence, the defendant was in breach
C of the suspended sentence imposed on him in 2015. However, he has no C
similar conviction and the offence relating to the suspended sentence was
D D
of a different nature. Therefore, I will not consider his breach of the
E suspended sentence as an aggravating factor. E
F F
19. On the issue of self-consumption, in deciding how much
G weight should be attached to the claim, I have carefully considered the G
authorities relied upon by the Defence and HKSAR v Choi Chun Wo [2018]
H H
5 HKLRD 717.
I I
20. The Prosecution’s stance is that there is no evidence to rebut
J this issue. J
K K
21. I have made it clear to the Defence that I am not prepared to
L accept a bare assertion from the bar table that a significant proportion of L
the subject cocaine would be consumed by the defendant without any
M M
credible factual evidence on the amount of consumption. After reading the
N case of Choi Chun Wo provided by the Prosecution, Mr Sadhwani accepts N
this to be the legal position. As no evidence would be called by the defence
O O
to substantiate the issue of significant proportion, Mr Sadhwani accepts
P that it would be unrealistic to ask the court to consider on this basis. P
Q Q
22. As the subject cocaine was separately packed (see also the
R photograph provided by the Prosecution) and he was going to share those R
drugs with the girls he met that evening, I do not consider that a significant
S S
proportion would be consumed by him.
T T
U U
V V
-7-
A A
B B
23. However, in light of the urine test results, his statement to the
C police under caution and the supporting document, i.e., the certificate C
issued by the rehabilitation centre in question, confirming that the
D D
defendant was a drug addict and was accepted by their centre for
E rehabilitation, I am prepared to accept that the defendant is a drug E
consumer and some of the subject cocaine might be consumed by him.
F F
G 24. Having regard to all the circumstances of the arrest, the latent G
risk factor and the fact the possession of drugs carries a sentence in any
H H
event, I am satisfied that the starting point of 31 months should be reduced
I by 2.5 months to 28.5 months. I
J 25. Apart from his guilty plea, I do not see any other mitigating J
factors which justify further deductions. I sentence the defendant to 19
K K
months’ imprisonment for the present offence.
L L
26. As to his breach of suspended sentence, I note that at the time
M M
of the present offence there were still more than 3 months to go before the
N N
end of the operational period. In my view, it was not a short period. In
O
view of all the circumstances which have arisen since the suspended O
sentence was passed, including the nature and the facts of the present
P P
offence, I do not consider it unjust to activate the 6 weeks’ imprisonment
Q in full. I also do not see any reason including matters advanced in Q
mitigation why I should not activate it in full. I therefore order the 6 weeks’
R R
imprisonment to run consecutively to 19 months’ imprisonment for the
S present offence making a total of 19 months and 6 weeks’ imprisonment. S
T ( Winnie Lau ) T
Deputy District Judge
U U
V V