HKSAR v. TOBON VANEGAS JUAN FELIPE

DCCC589/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 589 OF 2009

——————–

HKSAR
v.
Tobon Vanegas Juan Felipe

——————–

Before:

H H Judge Yung

Date:

15 July 2009 at 9.34 am

Present: Ms C Ma, PP, of the Department of Justice, for HKSAR
Mr Azmat Moosdeen Mui, of Messrs A M Mui & Kwan, assigned by the Director of Legal Aid, for the defendant

Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Breach of condition of stay (違反逗留條件)

—————————–

Reasons for Sentence

—————————–

1. The defendant pleaded guilty to two offences. The 1st charge relates to drug trafficking.

2. I accepted what your counsel said about the circumstances of the commission of the offence. Although there are a lot of things thedefendant has not informed the court through his counsel or in any other ways, but I give you the benefit of the doubt. I think youcommitted the offence because you were stranded in Hong Kong. You may or may not have a good reason for that, but you have not toldme the full circumstances. But suffice for me to say that you in fact went to the embassy for help. Such help in the form of financialhelp was refused. The representative of the embassy is present in court. The indication by gesture appeared to me that he had nodispute about the defendant’s claim that financial help was refused.

3. I was not told what advice the embassy had given you. The obvious alternative is to surrender yourself to the police, or to theimmigration, or to the authority. I do not think that needs anybody’s advice. It is only common sense. Although I would take thatinto consideration of the advice or the foolishness on your part not to surrender yourself, I took into account the fact that theembassy did not provide you financial help. But the mitigating factor would not appear to be stronger than it looked when your counselsubmitted to me. I accept that it is a mitigating factor but it is not a strong mitigating factor. And this is the only mitigatingfactor I can take into account when I decide the starting point. I would look at other mitigating factors after deciding on the startingpoint.

4. As you may have heard your counsel’s submission yesterday, the tariff for the offence is well-established. The applicable rangeis one of 5 to 8 years. To decide on the sentence within this range, the Court of Appeal in Lau Tak-ming’s case, the well-known case, has this to say in paragraph 85:

“Within the suggested bands factors which the sentencing judge may properly take into account are the profit…may reasonably beexpected to be derived from trafficking in the quantity of dangerous drugs involved, etc., etc.”

5. The practice has been correctly mentioned by your counsel. What I need to stress is it is within the suggested band. I cannot say$40,000 is a small amount. I cannot agree with your counsel that because you are not a messenger, so you are not part of the organization,so your role is lesser. I would have thought your role is bigger at least than a mere messenger. You had your own business, so tospeak. You were an independent peddler. So looking at the nature of your involvement and the quantity of drugs involved and the particularcircumstances, I would have thought the starting point would be one of 5 years and 3 months.

6. There is only one mitigating factor apart from the fact that you plead guilty and your frank admission to the police. As far asyour guilty plea in court, you are entitled to one-third remission. In respect of whether you are genuinely remorseful or not, nobodycan read your mind. But once you pleaded guilty, there is nothing I can do, you are entitled to one-third remission. So do not thankme for this.

7. Apart from that, your counsel correctly pointed out that you are a foreigner, you cannot speak the local language. I may not easilyaccept that. There is no statistics about the Spanish speaking population in the prison. But I have adjourned the matter, I haveindicated that statistics may be helpful, none is forthcoming, so I am willing to accept what you said.

8. You have indicated that you have difficulty in communicating with other inmates during your remand. I accept that you have difficulty,not only the language but the cultural difference is also harsh on you. And there is evidence you may have difficulty in communicatingin English because the facts suggested you did not say anything to the police. You did not admit anything to the police until a Spanishinterpreter has been arranged. So it is clear you are more comfortable to speak Spanish. I cannot say, so to speak, you can speakbroken English, you can communicate to inmates in language other than Spanish. So I accept that you do have problems, you have additionalproblem in prison, problems other prisoners may not experience. That is a mitigating factor.

9. I would have thought you should also be given credit for your admission to the police. It would save a lot of police time. If theprinciple is this, you are entitled to one-third remission for saving court’s time, I cannot see any reason people who not onlyplead guilty to the court but admit the offence to the police at the first opportunity should not be given an extra remission. Ofcourse the remission also depends on the circumstances of your arrest, the evidence against you without your admission. But in anyevent I believe that much of the police time in investigating the offence has been saved.

10. Together with the additional difficulty being a foreigner, with problem of communicating in local language and with the questionof different culture, all these, I am prepared to give you another 6 months’ remission.

11. So as for Charge 1, as a matter of calculation, 63 months. So for the 1st charge, I would sentence you for a term of imprisonmentof 36 months if my calculation is correct. Yes, 36 months.

12. As for the 2nd charge, I would have thought that as a matter of hindsight, you committed the offence out of foolishness. If yousurrendered yourself to the Immigration, you would have a free air ticket home at least. Whether the embassy is going to chase youfor the air ticket back in Columbia is another matter. The purpose of your stay would determine the seriousness of the offence.

13. The laws of Hong Kong are very harsh on offenders overstaying. The logic behind is this, they took up illegal work and reduced employmentopportunities for local workers. I have no moral judgment on that. But the principle is this, illegal workers cannot be punishedfor working illegally, so instead they were punished for immigration offence. I am sure if a tourist with a lot of money to spendhere in Hong Kong, if he overstayed, he will not be sentenced to imprisonment.

14. So in your case if there is evidence that you stayed behind for the purpose of committing this drug trafficking offence, it wouldappear that it would make the offence more serious. But a distinction must be drawn. Whatever you did during your overstay, you hadbeen punished for that, the drug trafficking offence. Unlike an immigration offender, if you do not punish them for the immigrationoffence, you cannot punish them merely for working illegally.

15. So I think in your case a nominal sentence of one month’s imprisonment, to run concurrently with the drug trafficking offence,should be appropriate. So I would sentence you to one month’s imprisonment for the 2nd charge, to run concurrently.

H H Judge Yung
District Judge