HKSAR v. Gacha Nino Jose Fernando

HCCC 399/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 399 OF 2015

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REASONS FOR SENTENCE
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1.In the early evening on 11 March 2015, the defendant arrived at Hong Kong international airport on a flight from Bogota, Columbia via Paris, France. He was intercepted by customs officers coming through customs clearance who conducted a body search on him. The officers made him remove his clothing and found tightly attached to his buttocks were two black plastic bags. Inside the bags were a total of 1,995 grammes of a solid containing 560 grammes of cocaine. The estimated street value of the drugs is $2,128,600.

2.The defendant was arrested and cautioned and upon inquiry he admitted that he was to hand over the cocaine to someone at the airport upon arrival.  He was told to meet the recipient at a taxi waiting area at the airport.  He acknowledged that he knew the packets contained cocaine and agreed to do the delivery for a reward of US$10,000.  He said he needed the money.  He explained that the arrangement was that he would stay in Hong Kong for 15 days.  However, found amongst his personal effects were a flight itinerary that had him scheduled to return to Colombia on 1 April 2015 and a hotel booking with a room reservation at a hotel in Guangzhou for the period from 12 March to 1 April 2015.  His passport contained a Chinese visa with a permit for him to enter Mainland China before 27 August 2015.  He also had on him US$1,409 cash.

3.At the time of his apprehension, he agreed to assist Customs officers and participated in a controlled delivery.  At about 8 pm that evening, he was taken to the public area of the arrival hall of the airport for the purpose of the controlled delivery.  However, nothing happened and the operation was terminated at 8:45 pm.

4.The defendant is 43 years of age and a Colombian national.  As to his background, he says he has elderly parents and three younger brothers.  Ms Diane M Crebbin, who appears on behalf of the defendant, submitted that he is single and at a time prior to the offence lived with his parents.  She explains that he comes from a rural background with limited education.  She says that he has attained a primary four education in Colombia having left school at the age of 14 to 15 years.  He mainly worked doing casual construction jobs.  She says that he supported his elderly parents and was in financial need when he was approached by members of the drug syndicate who recruited him to make this delivery of the drugs.  She says that the defendant comes from a poor background and this was the first time that he travelled outside of Colombia.  Other than that, there is very little known about the defendant.  Inquiries with the Colombian Consulate in Hong Kong concerning the defendant have been met with no response, notwithstanding several reminders.  This is indeed a very unfortunate set of circumstances and the courts would expect the diplomatic representatives of foreign nationals to be more cooperative in the future in cases of this type. 

5.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 and willingness to participate in the controlled delivery, although any reduction will be slight given the level of his participation in and the value of the assistance he had rendered to the authorities.  The defendant clearly had the backing of an international criminal syndicate that has sought to bring drugs into Hong Kong for possible onward transmission to Mainland China.  The guideline case of R v Lau Tak Ming [1990] 2 HKLR 370 provides for a sentence of a term of imprisonment of 19 years after trial for trafficking in 560 grammes of cocaine.  On the authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 and HKSAR v Chung Ping Kun, CACC 85/2014, 2 July 2014, unreported, where there is an international element, as evidenced in this case by the importation of drugs into Hong Kong and the circumstances by 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. 

6.The total starting point is 20 years’ imprisonment which I will reduce by 38% which represents a one-third discount for his plea of guilty and a slight further percentile reduction for his cooperation and assistance in the unsuccessful controlled delivery.  This will result in a sentence of 12 years and 6 months’ imprisonment.

7.Accordingly, the defendant is sentenced to 12 years and 6 months’ imprisonment.

Mr Andrew Cheng, SPP, of the Department of Justice, for HKSAR

Ms Diane Mervyne Crebbin, instructed by Tang Lai & Leung., assigned by the Director of Legal Aid, for the defendant