HKSAR v. Sanchez Rios Cesar Augusto

HCCC 188/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 188 OF 2016

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

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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drugs contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

You have admitted that on 26 October, last year, 2015 at the Hong Kong International Airport, you unlawfully trafficked in 2,535 grammes of a paste, which, upon drying, was found to contain 2,363 grammes of a solid containing 1,719 grammes of cocaine.

On that date you had arrived in Hong Kong from a flight originating from Brazil, Sao Paolo. However, I am informed that you had actually departed from Colombia.

You are a Colombian citizen, and are aged 21 now, but at the time of the offence, aged 20. You were denied entry into Hong Kong at the relevant time of your arrival, but your baggage was nevertheless checked. Concealed inside the knapsack to which you were carrying, were the drugs as stated in the charge. You were arrested and cautioned for the offence of trafficking.

In a subsequent interview conducted in the presence of a Spanish interpreter, you admitted that you were aware the rucksack contained cocaine, and that the purpose of your journey to Hong Kong was to bring the rucksack. You were offered a sum of US$30,000 to US$35,000, but you had in you possession a sum of only US$967.

The seized estimated retail value of the dangerous drugs was to the tune of $2,702,310.

Mr Michael Arthur has mitigated fully and thoroughly on your behalf. Within his submissions, he has submitted a bundle of documents containing various personal character references, including employer references, as well as certificates from the Attorney-General in Colombia, stating that you have a clear criminal record there in Colombia, and various letters, particularly one written by yourself, and Father John Wotherspoon, and a document supporting your case that the reason why you committed this offence was because you had a large debt to repay.

Other documents contained in that bundle are medical documents, referring to your sister, who suffers from lupus. You have a clear record in Hong Kong. As I mentioned, at the date of this offence, you were 20. Soon after you were arrested, however, you turned 21, and you are 21 years of age as of today.

In respect of your background, you have two sisters, aged 25 and 17, your mother passed away some 10 years ago, and your father, being at an age of 77 now, has rarely been present in your life, and is distant to you.

From the age of 13, you moved to Bogota to work. You are closer to your younger sister, and you are the primary caretaker of her. More so since she was diagnosed with lupus in 2014.

You were cohabitating with your girlfriend, who you have been involved with for the last 5 years. Whilst in Colombia, you were employed in an abattoir for the last 6 years, and earned about 900,000 pesos a month. I believe that is about US$500.

In this case, I am informed that soon after your sister was diagnosed with lupus, you had to take time off to care for her, and as a result thereof, your income dropped. Despite the medical care at the hospital being paid for or covered by the state, you had to pay for her medicine, which amounted to above 1 million pesos a month. Your income at that time, therefore, was insufficient to pay for both your sister and your living expenses, nevertheless, of course, was unable to cover her medicine. As a result thereof, you borrowed money from a loan shark to the tune of 5 million pesos.

You were soon unable to repay your loan, and threats were made against you and your family. Eventually, as an alternative way of paying back this loan, you agreed to commit this offence.

I am informed in no uncertain terms by Mr Arthur that this is not a case of duress as to why you committed this offence. Your commission of this offence was sadly, as you say, really to support your sister and yourself, living in Colombia. You have, no doubt, had a very difficult upbringing, being more or less orphaned since the age of 13, as your father was not involved in your life. You have carried a heavy burden of having to look after your younger sister, and tried your best to give her some stability in her life as well as yours. I accept you are not a criminal, and this is your first offence, and committed out of desperation to pay back your loans, and of course, in view of your very sad circumstances.

You have written a heartfelt letter to me expressing your remorse in the commission of this offence. I see that you have tried to assist and are assisting Father Wotherspoon to contact like persons in Colombia to discourage them from committing offences such as the one you have.

As a result of your incarceration in Hong Kong, I see that you are very worried, and of course, concerned that your sister will be all alone. However, I am informed by Mr Arthur that fortunately, your elder sister has taken her into her care.

As I am sure that Mr Arthur has informed you, that for the offence of drug trafficking in Hong Kong, the sentence is set out in tariff guidelines laid down by the Court of Appeal. These tariffs are binding upon the lower courts. Trafficking in dangerous drugs is a very, very serious offence, and punishable by, at most times, long periods of imprisonment. It is unfortunate that people like yourselves are targeted, those person who are either in desperate medical circumstances, or in desperate financial circumstances, or who are just plainly susceptible to the influence of these drug traffickers.

Unfortunately, most of you come from a very poor backgrounds, and generally of low education. I have said time and time again, that I have every sympathy for persons like yourselves who are targeted, but as you know, and in the end, it is a big risk to take, and if you are caught, then the consequences are upon your shoulders, and upon all those people connected with you.

Mr Arthur has tried to persuade me not to enhance your sentence as you had imported these drugs into Hong Kong. I am unable to accede to his application, as there are very clear and binding guidelines by the Court of Appeal, that importing or bringing drugs into Hong Kong is an aggravating factor such that the starting point warrants an enhancement.

Mr Arthur has submitted to me a case of HKSAR v Pacaya Tapullima Jose Abel HCCC 210/2014, handed down by my learned brother, Zervos J, whereby at that time he did not enhance the sentence. This judgment was handed down in July of 2014, and although it may be persuasive, it is certainly not binding, and I am bind by the Court of Appeal, and I do not, from my knowledge, know of any other case which has not imposed the enhancement for the importation or international element. I am thus unable and unwilling to follow this persuasive judgment.

The other case submitted by Mr Arthur is that of HKSAR v Otieno Millicent Akoth HCCC 145/2016, where, again, my learned brother, Deputy High Court Judge Woo took into account the mitigating factor of the defendant assisting Father Wotherspoon in his fight to reduce people like yourself in accepting drugs to bring to other countries. Once again, Mr Arthur has asked me to follow my learned brother’s discretion to reduce the sentence on that basis.

Although I accept that you are assisting Father Wotherspoon in his campaign, I am unable to accept this necessarily should be taken into account for reduction from the starting point.

Defendant, the guidelines for trafficking in cocaine is laid down in R v Lau Tak Ming and for larger amounts, such as the amount you have trafficked in, they were modified in HKSAR v Abdallah Anwar Abbas. In respect of the importation of drugs which involves an international element, that was also laid down in Abdallah.

The amount of drugs that you were trafficking in was 1,719 grammes of cocaine. That falls within the 1,200 to 4,000 grammes in the bracket of Abdallah, which calls for a sentence of between 23 and 26 years’ imprisonment, had you been convicted after trial.

Taking all these factors into account, I am prepared to adopt the most lenient starting point upon you, and had you been convicted after trial, I would have taken the sentence of 23 years’ imprisonment. As you were bringing these drugs into Hong Kong, that sentence shall be enhanced by 2 years’ imprisonment.

That will make a total sentencing point of 25 years’ imprisonment. You have pleaded guilty, you expressed your remorse, and as a result of which, you are deserving of the usual one-third discount. And in the circumstances, you shall be sentenced to 16 years and 8 months’ imprisonment.