HKSAR v. Contreras Gonzalez Marisol Carolina

HCCC 103/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 103 OF 2016

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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 convicted on her own plea of one

charge of trafficking in a dangerous drug. The guilty plea was entered at the Eastern Magistrates’ court on 26 February 2016.

The Particulars of Offence provide that on 7 July 2015, at the Hong Kong International Airport, Chek Lap Kok, Lantau Island in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 922 grammes of a solid containing 402.2 grammes of cocaine.

The Summary of Facts which has been admitted by the defendant provides that the defendant, a Venezuelan female, was detained at the Hong Kong International Airport after her arrival on a flight inbound from Sao Paulo, Brazil. A package containing suspected cocaine was found secreted in her vagina, after the defendant had been arrested and cautioned and remained silent. She was sent to the North Lantau Hospital where examination confirmed the presence of further foreign objects in her body cavity. She was arrested and cautioned again and remained silent.

The defendant subsequently discharged a further 73 packages containing suspected cocaine.

An examination confirmed the seized substance to be a total of 922 grammes of a solid containing 402.2 grammes of cocaine.

The seized dangerous drugs had an estimated retail value at the time of the seizure of HK$1,074,130.

In a record of interview, the defendant claimed:

(1) She had gone to Brazil at the invitation of a Nigerian male whom she had met on the internet. After a few days, this male offered her a job taking something to Hong Kong. When she found out this was drugs, she refused but the male threatened her with a pistol and stated that if she did not do it, he would kill her.

(2) Her phone was taken away and she was locked in an apartment.

(3) She was given the packages to swallow and place in her vagina.

(4) She had then travelled alone and had not attempted to seek help in either of the airports in Brazil or South Africa that she had travelled through.

(5) She was to go to a hotel in Hong Kong and discharge the pellets and she would be contacted for their collection.

(6) She was to receive US$4,000.

(7) The US$650 and mobile phone recovered from her were given to her by the male.

(8) She knew the packages contained something illegal.

In the Summary of Facts, the defendant expressly admitted that she was trafficking in the seized dangerous drug.

By way of personal background, the defendant is 20 years of age. She was born in Venezuela in April 1996, thus, she was 19 at the time of the present offence. She is single. Her parents are aged 57 and 45 respectively. They are separated. The defendant has one stepsister and two elder sisters. She has received education up to secondary level. She worked as a cashier at a pharmacy earning the equivalent of about HK$5,300 a month. She lived with her mother and two sisters.

The defendant has a clear record both in Hong Kong and in Venezuela.

By way of mitigation, Mr Parry submitted on behalf of the defendant that the defendant is remorseful; and the strongest mitigation is her guilty plea, which was entered at the earliest opportunity at the Magistrates’ court.

A mitigation letter by the defendant was handed up to the court, the contents whereof have been duly noted. In the letter, the defendant stated that she committed the offence in order to help her family financially, that the economic situation in her country is very bad and she had not considered the consequence of committing the offence.

However, as has been pointed out by the courts on many previous occasions, personal and family circumstances will offer little mitigation in serious cases of drug trafficking, which call for severe deterrent sentences in order to protect the public.

Mr Parry also urged upon this court to take into account her age. In this regard, Silke VP had this to say in R v Lau Tak Ming [1990] 2 HKLR 370, at page 386 F-G:

“It must 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. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

In the premises, I do not regard it as appropriate to give the defendant any discount in her sentence on account of her age. She was not of extreme youth at the time of the offence.

As to the “foreignness” of the defendant, this is not a matter that would affect sentence to any substantial degree [see: Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, at 73 line 34-40].

The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. The drug involved is 922 grammes of a solid containing 402.2 grammes of cocaine. In this jurisdiction, sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin contained in R v Lau Tak Ming (supra).

In the present case, the narcotic involved is 402.2 grammes of cocaine. According to the Lau Tak Ming case, for trafficking in between 400 grammes and 600 grammes of heroin, the proper sentence to be imposed after trial should 15 to 20 years’ imprisonment.

In my view, following the guidelines in the Lau Tak Ming case and based on the quantity of the narcotic involved, the proper initial starting point for sentence should be 15 years’ imprisonment.

This initial starting point should be enhanced by 9 months for the international element in the present case [see: HKSAR v Chung Ping Kun, CACC 85/2014 (Judgment of the Court of Appeal dated 2/07/2014), paragraph 9]. This would take the starting point up to 15 years and 9 months’ imprisonment.

I shall give the defendant the full one-third discount for her guilty plea, which was entered in the Magistrates’ court on the first opportunity.

The defendant is accordingly sentenced to 10 years and 6 months’ imprisonment.