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HCCC 50/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 50 OF 2016
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HKSAR |
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PEREZ OSORIO Luis Fernando |
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| Date: |
19 August 2016 at 3.57 pm |
| Present: |
Mr John Murray, on fiat, for HKSAR
Mr Andrew Bullett, instructed by Peter K H Wong & Co, assigned by DLA, for the accused
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| Offence: |
Attempting to traffic in a dangerous drug (企圖販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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| COURT: |
The defendant was charged with one count of trafficking in a dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134. He pleaded not guilty and was tried by the jury. The jury found the defendant not guilty of the full offence of trafficking but guilty of the lesser offence of attempting to traffic in a dangerous drug.
The facts are relatively simple. A man named Tobar, who arrived in Hong Kong on 17 April 2013, was stopped by customs officers at the airport. His suitcase was checked and cocaine was found concealed inside. Tobar was arrested and he agreed to cooperate with the customs officers to take part in a controlled delivery.
Custom officers took him to the COSCO Hotel which was pre-booked in the name of Tobar for three days, from 17 April. He was taken to Room 239 and was guarded by custom officers. Other custom officers stayed in the adjacent Room 237 to standby.
The officer in charge of the investigation of the team is Inspector Ho. He was also present in room 239 to oversee the operation. Nothing happened on 17 April. Inspector Ho, upon nothing happening in the morning of 18 April, checked a SIM card in Tobar’s phone and found a Hong Kong number in the name of Laura. Inspector Ho instructed Tobar to call Laura at about 1 pm. The defendant turned up outside Room 239 at 6.25 pm. He knocked on the door and after Tobar opened the door and they exchanged greetings, Tobar, acting according to instruction from inspector Ho, tried to give the suitcase containing the cocaine to the defendant. The defendant was however unwilling to take the suitcase and asked to enter the room instead. Though the Inspector had already instructed Tobar not to allow the man who had come to collect the suitcase into the room, Tobar had no choice. He had to open the door and allow the defendant inside. The defendant was arrested when he was going along the passage inside the room.
Examination of the suitcase later revealed a total of nine packets of dangerous drug concealed in the linings of the suitcase. They were found to be 1.07 kilogrammes of a powder containing 0.81 kilogramme of cocaine with an estimated retail value over HK$1 million.
The defendant is a national of Colombia, born in 1984. He is single but has a daughter now aged six. He is unemployed and has no fixed abode in Hong Kong. He has a clear record.
In mitigation Mr Bullett asked me to consider whether the offence committed by the defendant really involved an international element. He asked me to be as lenient as possible to the defendant here, having referred to the guidelines.
Trafficking in a dangerous drug is a serious offence. On conviction on indictment a person is liable to a fine of $5 million and to imprisonment for life. The total quantity involved here is 0.81 kilogramme, which is the same as 810 grammes.
According to the guidelines in the case of Abdallah in 2009, trafficking between 600 grammes and 1,200 grammes of cocaine, the appropriate starting point is between 20 to 23 years. I have of course had to bear in mind that the defendant is found guilty of attempting to traffic that amount of cocaine, not the full offence of trafficking.
Having considered all the circumstances of this case and the role taken by the defendant, I am of the view that a starting point of 20 years is appropriate. It is clear from the evidence that there was an international operation to bring the dangerous drug into Hong Kong. Tobar was the one who had imported the cocaine into Hong Kong and the arrangement was that he would stay in the COSCO Hotel to await for someone to take delivery. The defendant was the person who attempted to take delivery of the same. It matters not that there is no evidence as to where the cocaine was intended to be disseminated, whether here in Hong Kong or elsewhere. It also matters not that there is no direct evidence that the defendant was aware that he was taking part in an international operation. I am however satisfied on the basis that the defendant is a Colombian national and Tobar is someone from South America and the fact that they had to communicate in Spanish and the transaction was to take place in a hotel, that defendant was fully aware that the operation involved an international element.
That being the case there should be an enhancement. Actually both the cases of Abdallah and the case of Liew Tek Choon CACC 182/2009 confirm that it is necessary for enhancement. And as to the extent of enhancement, in the case of Chung Ping Kun, the Court of Appeal suggested a broad guideline of enhancement. Between 500 and 1,000 grammes the enhancement is 1 year to 2 years. In the present case, I consider that 1 year enhancement is appropriate.
That being the case, after the enhancement, the sentence is one of 21 years. Of course, as the defendant pleaded not guilty, he is not entitled to any discount for plea, and I do not see any reason to reduce this sentence of 21 years. For the offence of attempting to traffic in a dangerous drug, the defendant is sentenced to 21 years’ imprisonment. |
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