HKSAR v. Ruiz Laime Jesica Gladys

HCCC 217/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 217 OF 2015

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to trafficking in a very large quantity of liquid cocaine which when converted into powder form amounts to a little over 4.5 kilograms.

2.This case is extremely worrying for two major reasons.  First, it is yet again another case in which a national from South America, in particular Peru or Colombia, where drug cartels operate, has been caught bringing large quantities of cocaine or heroin into Hong Kong.  As is typical in cases of this type, the defendant is from an impoverished background, who has been preyed upon by the drug syndicate involved to act as a drug courier.  Secondly, it signifies the innovative methods employed by drug syndicates to smuggle drugs, as seen by the use of technology to convert cocaine powder into liquid form which is harder to detect, especially through radiographic scanning. 

3.The defendant pleaded guilty to the count on the indictment of trafficking in a dangerous drug, namely 20,725 millilitres of a liquid containing 4644.5 grammes of cocaine.

4.The agreed facts giving rise to the offence are that in the afternoon of 30 October 2014, the defendant disembarked at Hong Kong International Airport, having arrived on an inbound flight from Amsterdam which originated in Lima, Peru.  The defendant was intercepted by Customs officers when passing through Customs Clearance as she was only carrying a handbag, and this aroused their suspicion.  A search of her handbag revealed a boarding pass with a baggage tag on it bearing the defendant’s name.  The defendant was then taken to the luggage carousel where she located her suitcase.  It was digitally locked and the defendant was requested to open it.  She was unable to do so and the Customs officers forced opened the suitcase.  Inside the suitcase, they found 27 bottles of hair care products and 3 packets of salad dressing.  The liquid inside 20 of the bottles and the 3 packets were found to contain the drugs the subject of the count on the indictment.  The estimated street value of the cocaine was HK$20,082,525. 

5.The defendant was arrested and cautioned and through a Spanish interpreter she explained that no one was to meet her at the airport or at the hotel where she planned to stay in Hong Kong as the suitcase and its contents were not destined for Hong Kong but supposed to be taken by an unknown person in Amsterdam. 

6.In a subsequent caution interview, the defendant further explained that she was married but separated from her husband.  She said she lived with her three children at her mother’s home.  She said that she worked as a cleaner earning an income of 750 soles per month, which is about the equivalent of US$280.  When she was asked her purpose of coming to Hong Kong from Peru, she said a friend had told her that he would pay her 500 soles if she delivered a suitcase for him.  This friend told her that there was an international exhibition in Hong Kong and a Colombian male would come to her hotel and take her to the exhibition.  He also told her that everything would be paid for including her air tickets and accommodation for three days.  She said that the arrangement was for her to take the suitcase out of Peru only. She said she did not know if the suitcase would be left in Amsterdam or Hong Kong. 

7.She said the suitcase was given to her at the airport on the day that she flew out and denied that she knew what was inside. She did not open the suitcase and did not know the combination lock to it.  She said nothing in the suitcase belonged to her and all she had was a handbag.  Because the suitcase was heavy, she was given US$120 to pay for excess luggage.  She said all she was required to do when she arrived in Hong Kong was to exit with the handbag and go to the hotel.  

8.She claimed that when she was intercepted by the Customs officers, she did not have the luggage because she was told that it would get lost in Amsterdam and would not arrive in Hong Kong.  She claimed that she had been deceived, and did not know that the luggage contained drugs and that it would be sent to Hong Kong.  She said a family member had given her US$800 and that she was going to use the money to buy things at the exhibition. 

9.At the time of the arrest, the defendant was also found to have in her possession US$882, HK$720 and Peruvian $38.70. 

10.The airline company that she flew with confirmed that she departed from Lima on 28 October 2014 and arrived in Amsterdam on the next day when she transited from Amsterdam to Hong Kong on another flight.  The airline company confirmed that the suitcase was a check-through baggage sent from Lima directly to Hong Kong via Amsterdam and the passenger was not required to retrieve the baggage from Amsterdam to Hong Kong. 

11.The hotel where she was to stay confirmed that there was a room reservation for a guest named “Jesica Ruiz” for three nights from 30 October to 2 November 2014. 

12.The defendant admits and accepts that she knowingly possessed the drugs as specified in the count on the indictment for the purpose of unlawful trafficking. 

13.The defendant is a 33 year-old female from Peru.  She claims that she completed Form 2 education in Peru in 2000 and thereafter worked as a cleaner earning about US$270 per month.  She says that she was separated from her husband and has three children aged 13, 10 and 8 years respectively.  I am now informed that she was not previously married but with two different men at different times she had the children with them.  Very little is known and can be verified about the defendant although I have been provided with what appears to be an official document from the relevant authorities in Peru that a person with the name of the defendant has no criminal record in its national registry.  I will accept for the purposes of these proceedings that the defendant has a clear record.  I have also been provided with a medical report concerning one of the defendant’s children who sustained head injuries as a result of falling out of bed in June 2014.  This was just prior to the date of the offence for which she is now before the Court. 

14.Mr Kamlesh Sadhani, counsel for the defendant, submits that she agreed to transport the drugs at the suggestion of a friend who knew she needed money to pay for her son’s medical expenses.  He promised her a reward of US$1,000 to bring the drugs to Hong Kong.  She was given the suitcase containing the drugs by her friend at the airport just before her departure.  Mr Sadhani has disclosed the name of her friend in open court and indicated that the defendant is willing to assist the relevant authorities in conducting further inquiries into this case.  He has submitted, however, that the defendant wishes to be sentenced today and any assistance that she renders that proves to be of value will be asked to be taken into account later by an application to the executive.  

15.Finally, the defendant has submitted a letter to the Court in which she acknowledges her involvement in this offence and that she realises she made a serious mistake for which she should be punished.  She expresses deep regret for what she has done and how she has let down her children.  She explains that she is a single mother and thought by doing what she did she could solve her economic difficulties and provide the medical care for her children who she said were suffering with ill health.  In a frank and telling exchange, she says:

“I do not pretend to excuse or justify my behaviour, but I could not see my children suffer and not try to do something about the situation we were in. I deluded myself and thought that it would be easy because that’s what they tell you.”

16.Unfortunately for the defendant this provides little, if any, meaningful mitigation on her behalf because of the grievousness of the offence.  She has been caught bringing into Hong Kong a very large quantity of cocaine of a little over 4½ kilogrammes and she therefore falls within the upper levels of the tariffs fixed for drug trafficking of cocaine. 

17.In HKSAR v Daresa Mariam Guma, CACC 155/2012, 5 October 2012, unreported, McWalters J (now McWalters JA), giving the judgment of the Court of Appeal, explained that it is a notorious fact that persons from an impoverished background in underdeveloped countries are frequently employed by drug traffickers as drug couriers and drug mules to transport drugs from one country to another and regrettably the persons most readily tempted by this kind of crime are persons who come from desperate circumstances and so are more likely to be willing to assume the risks attendant upon international drug trafficking.  He emphasised that it is for this very reason that the courts will not be swayed by the plight of the trafficker. 

18.The sentencing guideline cases for drug trafficking have stressed that the gravity of the crime is such that it may result in otherwise mitigating factors having little, if any, weight.  It was explained by the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437 at §§32 and 33, that because of the grievousness of the offence, “a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally”, meaningful mitigation, apart from a plea of guilty, is rarely available.  The Court of Appeal went on to emphasize:

“32. …The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.

33. In this regard, it is worthwhile remembering the way Silke VP expressed some of the considerations to be kept in mind when sentencing heroin traffickers from amongst his concluding remarks in Lau Tak Ming (at p 386):

‘Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight.’”

19.Also with these statements in mind, McWalters J, went on to explain at §11:

“It is, of course, harder for the courts to ignore the suffering of innocent third persons who might be affected by the long period of imprisonment imposed upon the drug trafficker. But this suffering is not visited upon them by the courts but by the drug trafficker who succumbs to the lure of easy money. The court cannot allow the impact upon third parties to influence it into imposing a sentence less than that which is otherwise appropriate for the crime that has been committed.”

20.It still remains a very important function of the sentencing court when seeking to achieve individual justice, to know the background of the offender and the circumstances in and by which the offender got involved and participated in the offence.  There may be factors that reduce the culpability of the defendant or the extent to which he or she should be punished.  But as a rule of thumb, the greater the grievousness of the offence, the less likely that meaningful mitigation is available.  In the present case, the only mitigating factor that can be properly taken into account is the defendant’s plea of guilty for which she is entitled in the circumstances of this case to a one-third discount. 

21.Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed in R v Lau Tak Ming [1990] 2 HKLR 370 for heroin apply to cocaine.  See AG v Pedro Nel Rojas [1994] 1 HKC 342. 

22.The tariffs for very large quantities of drugs were addressed in HKSAR v Abdallah [2009] 2 HKLRD 437 where the Court of Appeal held that the guideline starting points for traffickers after trial, subject to enhancement, would be for 4,000 to 15,000 grammes, 26 to 30 years’ imprisonment.  The Court of Appeal explained that the aggravating factors which call for an enhancement of the starting point are: (1) an international element; (2) the trafficker has previously been convicted of trafficking in dangerous drugs; (3) the trafficker is shown to be a mastermind or senior player, such as a financier, in a syndicate; or (4) the offender is shown to have engaged a young person to assist in the trafficking.  The Court of Appeal further explained that in such circumstances the enhancement for amounts above 1 kilogramme would not be less than 2 years’ imprisonment in addition to the tariff as fixed.

23.The level of enhancement for an international element in the trafficking of drugs was further discussed in HKSAR v Chung Ping Kun [2014] 6 HKC 106 were a broad guideline was suggested where the quantity of drugs is less than 1,000 grammes.  It was suggested that the level of enhancement for between 500 and 1,000 grammes, is 1 to 2 years.

24.In the circumstances of this case, I will adopt an initial starting point for sentence of 26 years’ imprisonment.  I will enhance the starting point for the international element by 1 year which is slightly less than would normally be given because of the circumstances I have mentioned concerning the defendant.  Accordingly, the enhanced starting point for sentence is 27 years’ imprisonment, which I will reduce by one-third for the defendant’s guilty plea, thus resulting in a sentence of 18 years’ imprisonment.

25.It would be remiss of me not to comment on what is apparent to all concerned by the number and nature of the drug trafficking cases coming before the courts in Hong Kong.  The international illicit drug trade is becoming more sophisticated and calculating in its methods of smuggling drugs from one place to another.  Unfortunately, there is an endless line of vulnerable and desperate people who are preyed upon by the drug syndicates to act as drug couriers and drug mules, and as I have said in other cases, it is not enough for law enforcement in tackling drug trafficking to rest on the apprehension of those persons who transport the drugs without earnestly pursuing the members of the drug syndicates involved both here and abroad.  Law enforcement also needs to appropriately respond to the level of sophistication and technology employed by the drug syndicates in smuggling drugs.  The endless line of drug couriers and drug mules will not stop unless law enforcement strikes at the syndicates involved in the international illicit drug trade that has beset Hong Kong and the rest of the world.

Ms Grace Chan, SPP of Department of Justice, for HKSAR

Mr Kamlesh Sadhwani, instructed by Massie & Clement, assigned by Director of Legal Aid, for the defendant