HKSAR v. Calderon Gutierrez Hector Edisson

HCCC 481/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 481 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Mr Calderon, you pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you stand formally convicted of that offence.

The summary of facts has been read out to you on the previous occasion and you accepted those facts. But, in essence, you are a Colombian male, you collected the dangerous drugs in Colombia and attempted to enter Hong Kong at Chek Lap Kok International Airport on 10 July 2015, from Rio de Janeiro via Dubai. A search of your luggage revealed four packets of tomato sauce which was found to contain an inner packet of a paste-like substance containing 1.457 kilogrammes of cocaine.

To your credit, you admitted your part in the matter immediately and you volunteered to take part in a controlled delivery, although that was unsuccessful but through no fault of your own. I take the view that this was a genuine offer of assistance and it is unfortunate that the Customs and Excise were not able to carry it through because it is clear that you could have helped apprehend the local contacts who received these drugs from your country.

You only had US$744 on you upon arrest with which you intended to purchase a mobile phone and use the remainder for travelling, hotel expenses and food. You told Customs and Excise that you were to be given a reward of approximately US$10,000 which would be paid to you after delivery of the dangerous drugs in Hong Kong. Your acceptance of the application for forfeiture of US$544 supports this admission.

Mr Calderon, the value of the cocaine that you were importing into Hong Kong at the relevant time was HK$2,074,000.

You have a clear criminal record both in Hong Kong and in Colombia. You are 33 years of age, married with a 2‑year‑old daughter who has spent her early life in and out of hospital because of the hip dysplasia with which she was born. It was your daughter’s medical condition and the costs of the surgery required which led you to commit this offence because up to that point in time you were employed as a graphic designer and motor vehicle technician.

I take into account all that Mr Surman had said on your behalf. I understand fully your family circumstances, your financial position and the reasons you committed this offence. He has told me of the shame and remorse you feel for what you did, and of all that is now being done by your family in Colombia to stop others following in your footsteps. I suspect very few people who allow themselves to become drug mules realise the risk they put themselves at when they do so. But you have done so now and have, through your family, made efforts to stop others being so foolish. I have seen the proof of those efforts.

As Mr Surman says, you are very lucky indeed that you were not arrested in Malaysia or Singapore but, nevertheless, we do have a very heavy sentencing guideline in Hong Kong and the punishment which you receive must reflect the gravity of the offence.

The courts have been dealing with the issue of international importation of dangerous drugs for many years and they see fit to revisit this very grave offence from time to time in order to ensure that the approach is commensurate with the gravity of the offending and the harm to our society. The courts of Hong Kong take a very dim view of the importation of drugs and as a consequence the guidelines set out for the assistance of the High Court indicate that only heavy sentences will follow.

For the importation of 1.457 kilogrammes of cocaine in accordance with the guidelines set out in HKSAR v Abdallah [2009] 3 HKLRD 437, the guideline starting point for trafficking after trial, between 1,200 and 4,000 grammes, is 23 to 26 years. The appropriate starting point for 1.457 kilogrammes of cocaine is therefore 23 years and 3 months’ imprisonment.

There is also a significant aggravating feature because you brought these drugs into this country from abroad and for that international element to this offending, I enhance your sentence by 2 years under the same authority and the starting point is therefore 25 years and 3 months.

But I have taken into account all that counsel has urged upon your behalf, the fact you have no previous record in Hong Kong, your maturity and that you will be serving a significant sentence a long way from home and your family situation. Although these factors alone cannot reduce the sentence I have already indicated, as this is a serious crime for which a deterrent sentence is required and only the most exceptional proven personal circumstances will reduce the sentence below the guideline which I have mentioned.

However, I do note that you have attempted to assist the authorities and those attempts were genuine, and the fact that it was unsuccessful was not your fault. I take all that you have done and that you have tried to do and the work of your family into account as well, because those efforts may stop at least one person thinking that they can import drugs into Hong Kong with impunity.

Giving you a full one-third discount for plea and taking into consideration all other matters, you will go to prison for a period of 15 years.