A A
B B
DCCC 63/2015
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 63 OF 2015 D
____________
E HKSAR E
v
F F
LOPEZ MORENO JHON STEVEN
G ____________ G
H
Before: HH Judge Dufton H
Date: 5 March 2015
I Present: Miss Phenix Tse, PP, of the Department of Justice, I
for HKSAR
J Ms Susan Liang of Yip Tse & Tsang, 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. Steven Jhon Lopez Moreno you have pleaded guilty to one
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charge of trafficking in 71.60 grammes of a solid containing 33.10
O grammes of cocaine, contrary to section 4 of the Dangerous Drugs O
Ordinance, Chapter 134 (charge 1) and one charge of breach of condition
P P
of stay, contrary to section 41 of the Immigration Ordinance, Chapter 115
Q (charge 2). Q
R R
2. In summary you arrived in Hong Kong on the 26 November
S
2012 when you were permitted to stay as a visitor for 90 days. In breach S
of your condition of stay you did not leave as required and had by the
T T
time of your arrest overstayed almost 21 months.
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V V
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A A
B B
3. Your were arrested in the early hours of the 16 November
C last year having been found unconscious outside the Landmark in Central. C
You were taken by ambulance to the Queen Mary Hospital where on
D D
examination a plastic bag containing four oval shaped solids of cocaine
E
were found in your underpants. E
F 4. In passing sentence I have carefully considered everything F
said on your behalf by Ms Liang. I take into account you have a clear
G G
record in Hong Kong. This however carries little weight where the
H offender is a visitor who has overstayed and has committed serious crime. H
The commission of offences by a visitor is an aggravating feature of
I I
sentence (see HKSAR v Aguilar Garcia Milner Javier CACC 485/2012).
J J
5. The courts have equated for sentencing purposes cocaine
K K
with heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR
L 69). In R v Lau Tak Ming [1990] 2 HKLR 370 the Court of Appeal laid L
down guidelines for trafficking in heroin. The court said that the
M M
sentence upon conviction after trial where the quantity of narcotic is
N between 10 and 50 grammes is between 5 and 8 years imprisonment. N
O O
6. I am satisfied the proper starting point after trial for 33.10
P
grammes of cocaine based on quantity alone is 6 years and 8 months P
imprisonment. The offence being committed nearly two years after your
Q Q
arrival in Hong Kong I do not increase the sentence by reason of the fact
R you are a visitor. R
S S
T T
U U
V V
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A A
B B
Own use
C C
7. Ms Liang tells the court that although you are not a drug
D addict you do take cocaine from time to time. Ms Liang says you were D
found unconscious having taken too much cocaine. Miss Tse confirms
E E
that when you were taken to the hospital the result of the urine test
F showed you had taken cocaine that night. This lends support to the F
contention you do take cocaine.
G G
H 8. Ms Liang tells the court that you were to take the cocaine to H
a party where you would sell some and consume some. I am told that
I I
having shaved off some cocaine from one of the four solids this particular
J solid could no longer be sold and was therefore kept for your own use. J
K 9. As indicated in court I am prepared to accept a small K
quantity of cocaine may have been for your own use but not as much as
L L
one solid. Having taken your further instructions Ms Liang tells the court
M that you do not wish to give evidence to support your claim. You have M
also confirmed in court that you do not wish to give evidence to support
N N
your claim.
O O
10. In deciding how much weight should be attached to the fact a
P P
small quantity of the cocaine may have been for your own use I have
Q considered the decision in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, Q
in particular paragraphs 33 and 34.
R R
S 11. Taking into account the quantity of cocaine; the drugs were S
found on the street; possession of drugs carries a sentence in any event;
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and the latent risk factor, I am satisfied the starting point should be
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4
A A
B B
reduced by 5 months to one of 6 years and 3 months imprisonment.
C Giving you full credit for your plea of guilty you are convicted and C
sentenced to 4 years and 2 months imprisonment.
D D
Overstaying
E E
F
12. Ms Liang refers the court to the decision of the Court of F
Appeal in HKSAR v Tiongson Patricia Manalad [2002] 2 HKLRD 681
G G
where the court held that a starting point of 4½ months imprisonment was
H appropriate for overstaying just over 2½ years. Miss Liang submits a H
sentence of 3 months or less would be appropriate for overstaying for 20
I I
months. I am satisfied the proper starting point after trial is 3 months
J imprisonment. Giving you full credit for your plea of guilty you are J
convicted and sentenced to 2 months imprisonment.
K K
13. The two offences are entirely separate and distinct for which
L L
Miss Liang accepts consecutive sentences are appropriate. I am satisfied
M a total sentence of 4 years and 4 months imprisonment properly reflects M
your culpability on the two charges.
N N
O O
P P
(D. J. DUFTON)
Q
District Judge Q
R R
S S
T T
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