HKSAR v. Ospina Perez Jose Humberto

HCCC 387/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 387 OF 2015

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REASONS FOR SENTENCE

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1.In the early evening on 10 March 2015, customs officers intercepted the defendant as he was going through customs clearance at Hong Kong International Airport. A body search was conducted on him and he was found to be wearing two pairs of underpants with two slabs of cocaine concealed inside his inner underpants.

2.He came to Hong Kong on a flight from Bogota, Colombia via Paris, France.  The drugs consisted of 993 grammes of a powder containing 692 grammes of cocaine and 997 grammes of a solid containing 679 grammes of cocaine.  The total narcotic content of the cocaine was 1,371 grammes with an estimated street value of $2,123,330. 

3.The defendant was subsequently interviewed under caution where he admitted trafficking in the drugs concerned by transporting them to Hong Kong for reward.  He said he was the owner of a small bakery in Granada, Meta, Colombia, and that he barely made enough profit to meet his needs.  He said an old customer by the name of Eduard knew he was short of money and offered him a job to deliver drugs overseas in return for US$500 as expenses and US$6,000 upon successful delivery.  He agreed to make the delivery.  He said Eduard introduced him to a Colombian male who arranged the visa and flights for him.  When he arrived at Bogota airport, another Colombian male gave him the dangerous drugs and the extra underpants which he put on and then boarded the flight to Hong Kong.  He said the plan was that someone would pick him up at Hong Kong airport and after staying in Hong Kong for three days he would go to Mainland China to buy some phones and shoes before returning to Colombia.  He did not know whether he was to bring the drugs to Mainland China. 

4.When the defendant was apprehended and the drugs were found on him he cooperated with the authorities and readily admitted his involvement in the transportation of the drugs from Colombia to Hong Kong.  At the earliest opportunity before the Magistrates’ Court he entered a plea of guilty to the offence of trafficking in a dangerous drug with respect to the quantity of cocaine found on him. 

5.The defendant is 73 years of age and a Colombian national.  Mr Leslie Parry, who appears on behalf of the defendant, has explained in mitigation that the defendant is a sad and tragic figure who has been preyed upon by members of the drug syndicate involved because of his poor financial circumstances and need of money for an operation due to complications with varicose veins. 

6.Mr Parry informed me that in the time that the defendant has been in custody he has received medical treatment for his ailment and there is the indication that he may be suffering with something more serious.

7.The defendant was divorced in the 1970s and has a son aged 48 years who is a shoemaker, and a daughter who is aged 46 years who is a lawyer.  As a result of the family split up, his children have had little to do with him. 

8.Mr Parry explained that he owned a bakery in the small town of Granada, Meta in Colombia.  He worked the bakery together with his brother and one employee and earned around 1,500,000 Colombian pesos per month.  This is the equivalent of about $3,500 Hong Kong currency.  His brother is elderly and he looks after him.  Mr Parry has also informed me that only time that the defendant has travelled out of Colombia was in 1974 when he went to Panama. 

9.I have been informed by Ms Claudia Ng, for the prosecution, that inquiries were made with the Colombian Consulate about the defendant soon after he was arrested and to date there has been no response. It makes it difficult for the court to properly sentence without all relevant information as to the defendant’s background and record, and it is also unfortunate that the Colombian Consulate is not taking these matters more seriously.  However, the submissions of Mr Parry as to the personal circumstances of the defendant are accepted by the prosecution. 

10.It would appear that the defendant is a person of extremely modest means who for reasons best known to him has got involved in a very serious crime which appears to be out of character.  However, the bringing of hard drugs into Hong Kong will not be tolerated and will be visited by severe punishment as provided by the guideline cases.  There has been an increasing spate of cases of this type, where South American nationals are bringing hard drugs, mainly cocaine, into Hong Kong for distribution here or onward transmission to Mainland China.  It is reaching crisis levels as seen by the number of cases coming before the courts in Hong Kong.  It requires the authorities both domestic and international to address the problem and to investigate these cases so as to track down and bring to justice the ringleaders and organisers of the international drug syndicates that are clearly behind this international trade in drugs. 

11.The defendant pleaded guilty at the earliest opportunity and for that he should be given the customary one-third discount to his sentence.  I shall take into account his cooperation as well as his personal circumstances and the circumstances that led him to commit this crime.  The defendant clearly had the backing of an international criminal syndicate that has sought to bring drugs into Hong Kong and with possible onward transmission to Mainland China.  The guideline cases of R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 provide for a sentence of a term of imprisonment of 23 years after trial for trafficking in 1,371 grammes of cocaine.  Where there is an international element, as evidenced in this case by the importation of drugs into Hong Kong and the circumstances in which it was done, a sentence is subject to enhancement to reflect this aggravating factor.  The defendant’s sentence will therefore be increased by 1 year.  This will result in a sentence of 24 years’ imprisonment. 

12.Mr Parry has urged me to take into account the personal circumstances of the defendant.  Age and a person’s foreignness are not normally regarded as matters that can be taken into account in mitigation to any substantial degree.  In this case, the defendant was fully aware of what he was getting himself involved in and he participated in a very elaborate arrangement to bring a large quantity of drugs into Hong Kong.  It must not be forgotten that these drugs were destined for distribution to people here and possibly in Mainland China.  It is frightful to think of the harm that these drugs would have caused through their distribution and use.  However, I accept that the defendant is a person who has hitherto lived a modest and decent life and when he was apprehended by the authorities he cooperated and assisted them.  I will bear that in mind. 

13.Being as lenient as I possibly can in the circumstances of this case, I will reduce the starting point to 22 years’ imprisonment for the matters that I have mentioned above which I will discount by one-third for his plea of guilty to 14 years and 8 months’ imprisonment. 

Ms Claudia Ng, PP, of the Department of Justice, for HKSAR

Mr Leslie James Parry, instructed by Keith Lam Lau & Chan., assigned by the Director of Legal Aid, for the defendant