HKSAR v. Beltran Carvajal Serafin

HCCC 118/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 118 OF 2015

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant has been found guilty by the jury of the charge on the indictment and it involves his unlawfully trafficking in a dangerous drug, namely 1,960 grammes of a solid and powder containing 606 grammes of cocaine.

The Court of Appeal has set down guidelines for the sentencing in these sort of cases. Sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin. That is contained in the case of The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370 as modified in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197.

According to The Queen v Lau Tak Ming, the guidelines are that for trafficking in 400 to 600 grammes of heroin, and that is applicable to cocaine, the appropriate sentence should be 15 to 20 years’ imprisonment, and trafficking in 600 to 1,200 grammes of heroin which is applicable to cocaine, the appropriate sentence should be 20 to 23 years’ imprisonment.

In respect of the pure narcotic content of the offence, which involves 606 grammes of cocaine, I consider that a starting point of 20 years is appropriate.

Mr Hemmings on behalf of the defendant has asked me to consider his age, being nearly 70 years of age now and at the time of the offence 68 years of age, as a mitigating factor to reduce his sentence.

In the case of HKSAR v Bayanmunkh [2012] 2 HKC 233 at page 238, McWalters J said the courts were at pains,

“...to make it clear that no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers.”

In HKSAR v Cheng Wing Shui [2004] HKCU 900; CACC 169/2004, (decided on 6 August 2004, unreported), I as the Vice President of Court of Appeal said:

“There are clear indications from the courts to those involved in the drugs trade that old age is not a matter that the court will take into account as a mitigating factor in sentencing.”

And for drug cases, 68 years of age was not considered to be old age.

Since the defendant had brought the drugs into Hong Kong, that involved what we call an international element which aggravates the offence.

In HKSAR v Chung Ping Kun CACC 85/2014, a decision made on 2 July 2014, unreported, Cheung JA set out a number of cases dealing with the international element in paragraph 5 of his judgment. There was one case dealing with a similar quantity of cocaine. His reference number 7 of the cases, that is 680 grammes of cocaine, the enhancement is 1 year and the sentence before enhancement was 20½ years.

The present case involves 606 grammes of cocaine. I consider that for the international element, that is for importing the cocaine into Hong Kong, an enhancement of the sentence by 9 months is appropriate.

In the result, I sentence the defendant to a term of imprisonment of 20 years and 9 months.