HKSAR v. Alejandro Suriel Alberto

HCCC 104/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 104 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 his 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 16 March 2015, at the Hong Kong International Airport, Chek Lap Kok, Lantau Island in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 1.16 kilogrammes of a solid containing 398 grammes of cocaine.

The Summary of Facts which has been admitted by the defendant provides that on 16 March 2015 the defendant, a Venezuelan national, arrived at the Hong Kong International Airport from Sao Paulo, Brazil, via Abu Dhabi, UAE. He was intercepted for Customs clearance. Suspecting that he had concealed drugs in his body, the defendant was sent to the North Lantau Hospital for medical examination.

At the hospital, it was confirmed that the defendant did have foreign objects in his body. He was therefore arrested.

From 17 to 24 March 2015, the defendant excreted 92 pellets containing a total of 1.16 kilogrammes of a solid containing 398 grammes of cocaine.

Prior to being charged on 17 March 2015, the defendant was interviewed under caution with the assistance of an interpreter. He claimed that, as he was in financial difficulty, he agreed to take something for someone to Hong Kong for a reward of US$7,000 when he was in Brazil looking for business opportunities. He was brought to a flat and was told to swallow pellets, the number of which he could not recall. The defendant claimed that he did not know what the pellets contained.

The defendant added that, prior to leaving Brazil, he was given the air tickets to Hong Kong, a hotel voucher, two mobile phones and cash of US$800 from those instructing him for the job. He was told to go to the hotel named on the hotel voucher upon his arrival in Hong Kong. Someone would then contact him.

At the time of his arrest, the defendant had cash of US$800 and two mobile phones on him.

The estimated street value of the dangerous drug seized was HK$1,237,720.

In the Summary of Facts, the defendant expressly admitted that at the time of his arrival in Hong Kong, he knew that he was concealing dangerous drug in his body. He possessed the dangerous drug seized for the purpose of trafficking.

By way of personal background, the defendant is 68 years of age. He was born in Venezuela in October 1947, thus, he was 67 years old at the time of the present offence. The defendant is married with five children. He has received education up to form two level. He had previously worked as a driver with an income of around US$1,000 per year.

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 he is remorseful, which is reflected in his guilty plea entered in the Magistrates’ court at the first opportunity.

I am told that the defendant had retired from his job as a driver, and was engaged instead only in part-time work. He committed the offence for financial reasons, as he was promised a reward of US$7,000 for carrying the drug to Hong Kong.

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 1.16 kilogrammes of a solid containing 398 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 [1990] 2 HKLR 370.

In the present case, the narcotic involved is 398 grammes of cocaine. According to the Lau Tak Ming case, for trafficking in between 200 grammes and 400 grammes of heroin, the proper sentence to be imposed after trial should be 12 to 15 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 his 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.