HKSAR v. Saucedo Vaca Yessenia

HCCC 309/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 309 of 2016

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

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COURT: Stand up please, defendant. The defendant pleaded guilty before a Magistrate to one count of trafficking in a dangerous drug and was committed for sentence. The total quantity of dangerous drugs involved in this case is 147 grammes of cocaine, the estimated street value of the cocaine amounts to over HK$180,000.

The defendant is a Bolivian citizen. On 6 January 2016, she was detained at the Hong Kong International Airport on her arrival on a flight from Addis Ababa. Her journey had originated in Sao Paulo. Upon search of the defendant’s handbag, the cocaine was found inside two bottles purporting to contain whiskey. Under caution the defendant said the substance in the bottles was cocaine. Someone she did not know gave it to her and told her to take it to a hotel in Tsing Yi.

She intended to stay in a hotel in Hong Kong and wait to be contacted and she had no contact number for either the persons in Hong Kong or Bolivia. She was to be paid US$3,000 for doing this but had yet to receive the money. In a later video-recorded interview the defendant says she met a man at a club in Bolivia who offered US$3,000 to her to take drugs to Hong Kong. She had been paid US$700 as expenses and the US$531 recovered from her was the balance of that US$700. After arrival at the hotel which had been arranged for her in Hong Kong, someone would collect the bottles and bag from her.

The defendant is 27 years old, she is single and lives in Santa Cruz. She was a cell phone technician earning US$230 per month. She has no criminal record in Hong Kong or Bolivia. The defendant has written a letter to this court saying that she now realises the harm done to the users of the drugs and she’s now very remorseful.

In mitigation Mr Mitchell, counsel for the defendant, emphasised that the defendant was not a prime mover or organiser of this crime. Mr Mitchell submitted that the defendant was persuaded with a promise of easy money to take drugs to Hong Kong, with the assurance she would encounter no problems.

The defendant is now actively participating in the campaign initiated by Father Wotherspoon to tell people in the home country, this is in fact not the case. On behalf of the defendant, Father John Wotherspoon has also written to this court to ask for a lenient sentence for the defendant. Father Wotherspoon is renowned for running a campaign in Hong Kong to stop drug traffickers coming to Hong Kong from East Africa and South America. The campaign mainly consists of letters from the inmates in Hong Kong which the Father has put on his website and referred to media and blogs in other countries, with a view to expose to people in those places the serious consequences they might face in being used to traffic dangerous drugs to Hong Kong.

The Court of Appeal and also fellow judges in the Court of First Instance have commended Father Wotherspoon of his work in their judgements. According to Father Wotherspoon, the defendant and her family in Bolivia have been most actively supporting his campaign. Father Wotherspoon has on previous occasions helped a number of other drug offenders in Hong Kong who came from East Africa and South America, pleading for a lenient sentence.

The Court of Appeal in HKSAR v Akinyi Grace Sylvia CACC 324/2015, 5 May 2015, has consider whether a defendant should be awarded leniency in the same situation. While commending the initiative of Father Wotherspoon as benefiting to Hong Kong society, the Court of Appeal took the view that if such initiatives require the participation of convicted drug traffickers in order for them to be effective, then it will be a matter for the executive to determine whether such assistance should be rewarded by use of the executive’s power of clemency. However, the mitigation in this regard has not been advanced before the sentencing court, but only to the Court of Appeal in Akinyi. In the present case this particular mitigation has been placed before me and I can see no reason why I cannot take this into account in considering sentence.

Trafficking in dangerous drugs is an extremely serious offence. People committed the offence will inevitably faced with a long imprisonment sentence. The length of imprisonment imposed depends mainly on the quantity of dangerous drugs involved. For trafficking in cocaine, in considering sentence, this court should follow the tariff laid down by the Court of Appeal in R v Lau Tak Ming [1992] HKLR 370 and also HKSAR v Abdallah [2009] 2 HKLRD 437.

As per the tariffs set out in Abdallah, for trafficking in cocaine of a quantity between 50 grammes and 200 grammes, a starting point of 8 to 12 years’ imprisonment should be adopted. In the present case the quantity involved is 147 grammes, the appropriate starting point in respect of the quantity involved should be more than 10 and a half years’ imprisonment.

Taking into account the defendant’s mitigation, in particular the circumstances she came to have committed the present offence and her contribution to the campaign to stop drug traffickers coming to Hong Kong from South America, I will adopt a slightly lower starting point within the range of 10 years and 3 months’ imprisonment.

The defendant imported the cocaine into Hong Kong and as rightly acknowledged by Mr Mitchell, this is an aggravating factor. Making reference to the guidelines set out in HKSAR v Chung Ping Kun [2014] HKCU 1568, the sentence should be enhanced by 6 months. Full discount should be given for the defendant’s guilty plea, the defendant’s sentence shall therefore be reduced from 10 years and 9 months to 7 years and 2 months.