HKSAR v. Bustillo Vergara Catherine

HCCC 391/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 391 OF 2015

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REASONS FOR SENTENCE

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1.In the early evening on 2 February 2015, the defendant, a 29-year-old Filipino female, was intercepted by customs officers coming through customs clearance at Hong Kong international airport, having arrived from Manila, Philippines. In a small bag inside the defendant’s suitcase was found 1,794 g of a solid containing 1,314 g of cocaine. The estimated street value of the drugs seized was $1,774,266.

2.The defendant admits that she knew she possessed the drugs in the small bag for the purposes of unlawfully trafficking in them by bringing them into Hong Kong.

3.In a video recorded interview conducted under caution, the defendant said she worked as a customer service representative of a software company in the Philippines and came to Hong Kong to buy clothing for the child that she was expecting and to visit a church in Kowloon.  She said she purchased the flight ticket online and booked a hotel room at the Silka Seaview Hotel in Kowloon.  Inquiries have revealed that there was no booking record for the defendant at the hotel and her flight details show that she flew to Hong Kong from Manila on 2 February 2015 and had a return flight on 4 February 2015.

4.She said that a female named Leondra who she had never met before, gave her a suitcase and the small bag in which the drugs were found at Manila International Airport when she was about to board her flight to Hong Kong.  She said Leondra persuaded her to use her suitcase for her trip to Hong Kong instead of the shoulder bag she was carrying as it was heavy and she was pregnant.  She said Leondra opened the suitcase and she noticed there was a small bag inside it.  Leondra told her that the small bag was for keeping documents.  She said Leondra took out all her belongings from her shoulder bag and put them inside the suitcase.  She did not check the bag.  Leondra told her that she would get back her suitcase when she arrived in Hong Kong on 3 February 2015.  For this purpose Leondra gave her a Sim card to contact her. Inquiries revealed that there was no flight booking for a person named Leondra from Manila to Hong Kong on 3 February 2015.

5.The defendant during the interview denied she knew drugs were inside the small bag but she now has pleaded guilty to trafficking in the quantity of cocaine found in the small bag.

6.The defendant entered her plea of guilty to the trafficking offence at the earliest opportunity in the Magistrate’s Court on 25 September 2015 and for this she is entitled to a one third discount to her sentence.

7.The defendant is now 30 years of age.  At the time of her arrest, she was single and living with her family in the Philippines.  She had just quit her job.  I am told by Mr Andrew Bullett, who appears on behalf of the defendant, that she was four months pregnant at the time of the offence.  She has since given birth to a baby boy whilst in custody. He also tells me that she is currently looking after her son in custody.  Under the Prison Rules, Cap 234A, the defendant is entitled to keep her son in her custodial setting until he reaches the age of nine months and thereafter she can apply to keep her son with her until the age of three years. 

8.Mr Bullett points out, however, that the defendant is experiencing difficulties in taking care of her child because of regulations and arrangements in prison custody.  He informs me that the defendant proposes to send her child to her fiancée who she was to marry before this incident.  I am told he has a good job and will take care of the child.  He also informs me that the defendant comes from a respectable family in the Philippines. At the time of the offence she lived with her mother and family.  Her father who has now passed away was a policeman.  She is the second child of six children.  She attained a degree in business and tourism and had a good job with a software company and took leave of absence due to her pregnancy.  She has come to Hong Kong before in November of last year for a short trip and has previously worked in Saudi Arabia as a domestic helper between 2012 and 2013. 

9.The defendant has submitted to me two letters in which she has expressed her deep remorse and regret for the crime that she has committed.  She asks for leniency.  She comes across as an intelligent and religious person.  She has indicated the difficulties that she is undergoing as a mother with a young child in prison custody.  She tells me that when she makes maternal visits to the hospital, she is handcuffed and chained around her body and this causes her great difficulty in caring for her child.  Whilst I understand there may be rules and regulations within the purview of the Correctional Services Department regarding physical control of a person in custody, I would have thought an element of common sense would appropriately adjust those rules and regulations to cater for the circumstances of the individual and the situation.  It seems to me that a young female with a child in her care would not pose as a serious flight risk or threat. 

10.Mr Bullett asks for a lenient sentence in light of the defendant’s background and the circumstances of taking care of the child in custody.  He submits on her behalf that she was lured into bringing the drugs to Hong Kong through a Facebook friend but it seems to me on the basis of the agreed facts that she was fully aware of her actions and the consequences of bringing drugs into Hong Kong.  The defendant as I have said was four months pregnant at the time of the offence and Mr Bullett submits that she will experience hardship and difficulties in caring for her child in custody and especially in light of the fact that eventually she will send her child to the care of his father.  He submits that this will bear more harshly on her than it would on a local person.  It is well established that family circumstances can play virtually no part in mitigation in drug trafficking offences.  However, the Court can take into account circumstances that may harshly and disproportionately impact on a defendant so that a degree of leniency is given to meet the justice of the situation.  See HKSAR v Alpire Cabral Dayanna Esmeralda, CACC 11/2004, 7 May 2004, unreported, at §§5 to 8; HKSAR v MUYONGA Jacquiline Andalo, CACC 305/2009, 23 February 2010, unreported, at §§3 and 4.  See also Secretary for Justice v Dank & Anor [2008] 4 HKC 483 at §31.  This is sometimes described as an act of mercy to address certain circumstances by providing a modest reduction in the sentence to be given.  See R v Irene Cynthia Attuh-Benson [2005] 2 Cr App R (S) 11 at §§23 to 25.

11.According to the guideline cases for a quantity of 1,200 to 4,000 g of cocaine, a starting point of 23 to 26 years’ imprisonment should be adopted.  This puts the starting point in the present case at 23 years’ imprisonment which should be enhanced for the aggravating factor of the international element of between 1 to 2 years’ imprisonment.  It would seem appropriate therefore to adopt a starting point of 24 years’ imprisonment in the circumstances of this case.  Besides her plea of guilty, there is no meaningful mitigation that can be advanced on her behalf, given the seriousness of this offence.  As harsh as it may seem, the pregnancy of the defendant provides virtually no mitigation in the face of a serious offence such as the present one involving trafficking in a large quantity of hard drugs.  It must not be overlooked that the defendant brought into Hong Kong a large quantity of hard drugs that were destined for distribution here and would have caused devastating harm and ruination to the lives of many people.  The penalties are severe for this very reason. 

12.I am persuaded, however, given the foregoing circumstances of the defendant in relation to the difficulties that she would experience in caring for a child whilst in custody and in the eventual care of her child by the father in her home country, the Philippines, that the starting point be reduced to 22 years’ imprisonment as an act of mercy. 

13.Accordingly, I will reduce the starting point of 22 years’ imprisonment by one-third for her plea of guilty to 14 years and 8 months’ imprisonment. 

Mr Harish Hariram Melwaney, SPP, of the Department of Justice, for HKSAR

Mr Andrew Humphrey Bullett, instructed by B. Manek & Co., assigned by Director of Legal Aid, for the defendant