HKSAR v. Rodriguez Bandera Jaime

HCCC 536/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 536 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: I shall first of all give a short ruling on the Newton inquiry.

During mitigation your counsel, Mr Bullett, informed me of the two claims you made. The first claim is that you bought the cocaine in Colombia believing that it weighed just about 25 grammes and that was the amount you brought into Hong Kong. The second claim is that whole amount of cocaine was intended for your own consumption.

Mr Grounds for the prosecution accepts that it was possible that you were a drug abuser and that some part of it might be used for self-consumption, but he disputes your claim that you believed you only took about 25 grammes of cocaine into Hong Kong.

I have indicated that subject to that limited concession indicated by the prosecution, I was not inclined to accept your claims in light of the summary of facts admitted by you.

Your counsel felt that a Newton hearing was required, and you decided to give evidence. I directed a Newton inquiry to be held to resolve the factual issues concerning your claims. These claims being mitigating factors in nature, the civil standard of proof applies: see Sentencing in Hong Kong, Cross and Cheung, 7th edition, pages 181 and 243.

In the Newton inquiry, you gave evidence under oath on your personal background and financial status. You said that the purpose of your present trip was for researching into the prospect of developing a tourism business in Fiji. You described how you had purchased the cocaine in question in Colombia, how someone had helped you to pack them into your suitcase. You said that you had paid for only 25 grammes of cocaine but did not know why you were given about 53 grammes.

You said under oath that you are a drug addict and that the whole amount of cocaine was for your own consumption. Your usual daily dosage is between 3 to 6 grammes of cocaine.

You also confirmed that you have no criminal record in Colombia or anywhere else in the world. I shall bear that in mind as a factor favourable to you when assessing credibility.

Your counsel, Mr Bullett, also tendered an expert report on cocaine dated 6 October 2015 for the purpose of this inquiry, which has been marked as Exhibit D1.

Mr Grounds, as amicus, questioned you on all aspects of your evidence. Among others, it was suggested to you that your financial position has been worsening in recent years, that it was impossible that a drugs supplier in Colombia could have given you over 50 grammes of cocaine when you had just paid for 25 grammes.

It was also suggested to you that you are not credible and that you intended to supply the bulk of the cocaine to someone else for financial gain.

Mr Bullett submitted on your behalf that you have not been shaken, and that the circumstances were consistent with your claims.

I have listened carefully to your evidence. I am not satisfied on the civil standard that you have made out the first claim. Among other reasons, I find it wholly implausible that a drug supplier in Colombia could have supplied you with slightly over 50 grammes of cocaine when you had just paid for 25 grammes.

I am not satisfied that you are honest, and I do not accept that you intended to use the whole amount of cocaine for self-consumption. You have, however, substantiated your claim that you are addicted to cocaine by evidence on oath.

I am prepared to accept that part of that amount of cocaine could have been used by you for self-consumption. I note that you intended to stay in Hong Kong for just over one day and that your daily dosage was between 3 to 6 grammes of cocaine.

I shall now sentence you on the above basis.

I shall now deal with sentence.

On 4 November 2015, you pleaded guilty to one count of trafficking in a dangerous drug, namely 1.03 kilogrammes of a paste which, upon drying, was found to contain 0.87 kilogrammes of a solid containing 52.87 grammes of cocaine. You also admitted the summary of facts read out to you by Mr Grounds, fiat counsel for the prosecution.

You are a Colombian national. On 6 May 2014 you left Colombia by flight for Frankfurt. On 7 May you left Frankfurt. You boarded the flight there for Hong Kong carrying with you, among other things, a baggage identification tag numbered LH534581.

On 8 May your flight arrived in Hong Kong at the Hong Kong International Airport. You cleared immigration control at about half-past-three in the afternoon. You proceeded to the baggage reclaim hall and collected your checked baggage, namely a black suitcase with baggage identification tag number LH534581.

At about 4 pm that day, Senior Customs Officer 89132 intercepted you at Arrival Hall A for Customs clearance. Following examination of your black suitcase, conducted by Customs Officers, revealed that it contained a concealed compartment. Inside that compartment were found two packages of suspected dangerous drugs in paste form wrapped in transparent wrapping material. You were arrested and cautioned.

Subsequent examination by Government Chemist confirmed that that paste form substance contained 52.87 grammes of cocaine. When you were intercepted, you were in knowing possession of the cocaine contained in the concealed compartment. You unlawfully trafficked in a dangerous drug by importing the said cocaine into Hong Kong.

In May 2014, the estimated retail or street value of 52.87 grammes of cocaine to abusers in Hong Kong was HK$51,971 at $983 per gram.

You are now 65 years of age. In mitigation Mr Bullett has informed me of your background, your health and that you are a daily user of cocaine. You have no criminal record in Hong Kong and elsewhere and you have confirmed - substantiated that by evidence on oath.

I shall sentence you on the basis of my ruling in the Newton inquiry, taking into account all other relevant factors.

I shall pass sentence in the following steps:

i. On the basis that you carried 52.87 grammes of cocaine into Hong Kong, I shall take a starting point of 8 years: see R v Lau Tak Ming & Anor [1990] 2 HKLR 370.

ii. I shall enhance that starting point by one month to reflect the international element of trafficking, bringing the starting point to 97 months: see HKSAR v Chung Ping Kun CACC 85/2014 (unreported) at paragraph 9, noting that the broad guideline given there relates to the dangerous drug, “Ice”.

iii. On the finding that part of the cocaine was for your self-consumption, I shall discount that enhanced starting point by a factor of one-sixth, ie, about 16 per cent, bringing it down to 80 months and three weeks.

iv. You are partly successful in the Newton inquiry. I shall give you the full one-third discount for your plea of guilty which would result in a sentence of 53 months and two weeks.

You shall serve a sentence of 53 months and two weeks of imprisonment.