HKSAR v. Paes Martino Alessander

HCCC 440/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 440 OF 2015

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REASONS FOR SENTENCE
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1.The defendant is a Brazilian national who on arrival in Hong Kong on 29 April 2015 was found to be in possession of a large quantity of cocaine. He was arrested and charged and after several preliminary court hearings he indicated he would plead guilty which he did on the return day of his case on 13 November 2015 in Eastern Magistrates’ Court.

2.The defendant came to Hong Kong on a flight that originated from Sao Paulo, Brazil, with a stopover at Abu Dhabi.  A search of him by Customs officers produced from each of his shoes a package containing cocaine.  When the drugs were found, he immediately acknowledged it was cocaine which consisted of a total of 960 g of a powder containing 769 g of cocaine. The estimated retail value of the drugs is HK$1,100,160. 

3.In a formal interview, the defendant explained that he had been asked by a man called Joe who he met in a bar to bring drugs to Hong Kong.  He agreed, and arrangements were then made for him to transport the drugs to Hong Kong.  He said on the day of the flight, he was given shoes which he checked and saw that they contained drugs.  It was his idea to wear the shoes rather than place them in his luggage.  He was instructed that on his arrival in Hong Kong he was to go to a hotel which had been booked for him and he would be contacted by a person to whom he would deliver the drugs.  He was promised a reward of US$3,000 in making the delivery.

4.The events that followed soon after his arrest are of relevance to his sentence and worthy of mention.  When the defendant was apprehended he immediately acknowledged to Customs officers in broken English that he was in possession of cocaine.  He spoke Portuguese.  He was cooperative and willing to provide whatever information or assistance he could to Customs officers.  The Customs officers were keen to obtain information from him about the delivery of the drugs and also his consent to take part in a controlled delivery operation but because his proficiency in English was poor Customs officers had difficulty communicating with him.  Unfortunately, several attempts by Customs officers to secure the services of a Portuguese interpreter failed.  The decision was taken that without the assistance of an interpreter a controlled delivery operation was deemed to be unsafe.  As the defendant had with him a hotel booking, Customs officers assessed whether an operation could be mounted at the hotel but this was not pursued because of concern over the safety of staff and guests at the hotel.  The end result was that no controlled delivery operation could be mounted in this case.

5.In consequence, a golden opportunity was lost to carry out a controlled delivery operation because of the unavailability of an interpreter to Customs officers in order to communicate with the defendant, who was at all times cooperative and willing to provide whatever information or assistance he could to them.

6.As readily acknowledged by Mr Hanish Melwaney, Senior Public Prosecutor, in his comprehensive and considered written submission, the failure to carry out a controlled delivery operation was due to no fault on the part of the defendant, who in all the circumstances would have further assisted Customs officers in their investigation and in all likelihood would have participated in a controlled delivery.  I agree with Mr Melwaney’s assessment of the circumstances of this case that the defendant was willing to cooperate and assist Customs officers but because of a communication barrier was unable to do so.

7.The courts have regularly acknowledged the importance of an arrested person assisting law enforcement authorities in the detection of crime, and this may, depending upon the circumstances of the case, result in a reduction of the sentence to be imposed on the arrested person.  There have been cases where because of circumstances beyond the control of the defendant, his preparedness to assist law enforcement authorities even though not utilised has still been taken into account by the court when passing sentence on him.  Such a situation has occurred where a defendant has expressed his preparedness to give evidence against a fellow defendant who eventually pleads guilty and therefore the defendant is not required to give evidence. Another such situation is where a controlled delivery operation does not take place through no fault of the defendant who had agreed to participate or would have participated in such an operation. 

8.The present case is unusual because the Customs officers due to communication problems were unable to take advantage of the cooperation and preparedness by the defendant to assist them in furthering their investigations.  I am satisfied on the information before me that the defendant was willing to cooperate with Customs officers and would have participated in a controlled delivery operation, if not for the unavailability of an interpreter. 

9.A similar situation arose in the case of HKSAR v Jardin Rodela Maningas, CACC 278/2011, where Stock VP (as he then was) stated:

“It is our view that the applicant ought to have been given some credit for her preparedness to assist in securing the apprehension of the person or persons in Hong Kong to whom the drugs were to be delivered backed up as that agreement was by action on her part. It is important as a matter of principle to encourage arrested persons to assist in this way and in this case there was no empty offer of assistance but a practical engagement in the exercise, the failure of which did not in any way lie at the door of the applicant. We are surprised that counsel for the respondent does not see it that way and has suggested that even on the facts we have outlined no credit should be given simply because in the event the assistance in fact provided came to nothing.”

10.As helpfully submitted by Mr Melwaney, there have been numerous cases where the courts have awarded a discount to a defendant notwithstanding that the controlled delivery operation did not take place. Just to mention some of the more significant cases: HKSAR v Chow Yuet Kwan, HCCC 184/2009, 24 July 2009, unreported; HKSAR v Gopal Muthusamy, CACC 238/2010, 13 July 2011, unreported; HKSAR v Saavedra Rosamarie Bernardo, CACC 424/2011, 11 July 2012, unreported; HKSAR v Wong Chun Kit, HCCC 501/2013, 21 January 2015, unreported; HKSAR v Tang Ho-ming & Anor, HCCC 511/2014, 7 August 2015, unreported; HKSAR v Chan Yuk Yin, HCCC 169/2015, 25 August 2015, unreported; HKSAR v Berthy Enciso Rafael, HCCC 235/2015, 25 August 2015, unreported (in this case a Spanish interpreter was unavailable to assist in conducting a controlled delivery of the drugs by the defendant and a reduction to his sentence was given for his willingness to carry out a controlled delivery); HKSAR v Cossio Lit Marco Antonio, HCCC 184/2014, 26 August 2015, unreported; HKSAR v Brito Rangel Wilson, HCCC 332/2015, 6 October 2015, unreported. 

11.What emerges from these cases is that the defendant in each instance cooperated immediately with the authorities upon being arrested when found in possession of dangerous drugs in that the defendant admitted his guilt and indicated he would provide information or assistance to the authorities which was assessed as a genuine effort made in good faith by the defendant and this was usually followed by a full and frank account of the defendant’s involvement in the crime and a plea of guilty at the earliest opportunity.  In these circumstances, a defendant is normally deserving of a discount greater than the one-third discount to be given for a timely plea of guilty. 

12.It appears that there is no clear case law as to whether a discount on sentence should be given in the specific circumstances of the present case where a defendant is clearly cooperative and willing to take part in a controlled delivery operation but because of communication problems it does not eventuate.  The factors that are highly relevant in such a situation is that the defendant immediately displayed a cooperative attitude to the law enforcement authorities by acknowledging that he was in possession of the drugs and by providing or displaying a genuine willingness to provide information and assistance in the investigation of the case.  The defendant’s genuine willingness to assist the law enforcement authorities can usually be measured by the defendant’s immediate acknowledgement of his wrongdoing, followed by a full and frank account of his involvement in the crime and a timely plea of guilty.  Of course, highly relevant are the circumstances in which the controlled delivery did not take place, and as evidenced in this case it was due to the unavailability of an interpreter and the inability of the law enforcement officers to effectively communicate with a cooperative and willing defendant.  I am satisfied in the circumstances of the present case that had a Portuguese interpreter been available, the defendant would have participated in a controlled delivery operation. 

13.I should stress that I will give the additional discount to the defendant because I accept in the circumstances of this case he would have participated in a controlled delivery operation if required and that was evident by his continuous cooperation from the moment he was apprehended. It will depend on the particular facts of the case and whether there was a genuine willingness to assist the authorities that was not able to come to fruition because of some intervening factor beyond the defendant’s control.  It will still require some assessment of the nature and value of that assistance in order to determine an appropriate deduction.

14.As is typical in cases of this type involving a foreign national, very little is known about the defendant, other than what the defendant himself has to say.  But I am prepared to accept what he says as he displayed a cooperative and remorseful attitude as soon as he was apprehended and was full and frank with Customs officers. 

15.The defendant is 33 years of age, married with four children, two sons and two daughters all of whom are under the age of 10. He worked as a sales representative, but since 2014, he has been unemployed. He had, however, taken on various casual jobs from which he had earned a monthly income of the equivalent of about HK$3,000.  He had found it extremely difficult financially having to support his family and his father who lived with him.  He says that out of desperation he agreed to bring the drugs to Hong Kong.  This provides no excuse for what he has done or for any favourable consideration when imposing a sentence, given the nature and seriousness of the crime he has committed.  The bringing of drugs into Hong Kong is not only harmful to the individuals for whom they are destined but also to the community that has to bear the care and responsibility of the horrors of drug abuse and the drug trade.  

16.It is to the defendant’s credit that he has written a compassionate letter to the court acknowledging his wrongdoing and expressing his profound regret for the crime that he has committed and while asking for mercy accepts that his conduct warrants severe punishment.  I have also received glowing testimonials from his family and friends which depict the defendant as a good and decent family man.  In fact, I am informed that whilst he has been in custody his wife has given birth to a baby boy and this was one of the reasons why he got involved in making the delivery to earn some money because of the forthcoming birth of his child.  It is also to the defendant’s credit that he cooperated with the authorities when he was apprehended as I have already discussed and for that he should receive a further deduction to his sentence in addition to the one-third discount for his plea of guilty.

17.According to the sentencing guidelines for the quantity of narcotic content involved of 769 g of cocaine, he is in the band of 600 to 1,200 g where guideline starting points for traffickers after trial, subject to any enhancement, is 20 to 23 years’ imprisonment.  I will adopt the starting point of 20 years and 9 months’ imprisonment.  See R v Lau Tak Ming [1990] 2 HKLR 370; HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 and HKSAR v Chung Ping Kun [2014] 5 HKLRD L2.  The sentencing guidelines also require an enhancement for the international element of bringing the drugs into Hong Kong and the starting point will be increased by 1 year to 21 years and 9 months’ imprisonment.  The defendant is entitled to a one-third discount for his early plea of guilty which I will increase to 40% for his apparent cooperation and assistance to the authorities and accordingly he is sentenced to imprisonment for 13 years.

Mr Hanish Melwaney, SPP, of Department of Justice, for HKSAR

Mr Phil Chau, instructed by Massie & Clement, assigned by Director of Legal Aid, for the defendant