HKSAR v. Argamaso Rizza Mae Lagdamen

HCCC 416/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 416 OF 2016

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

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COURT:

The defendant had pleaded guilty in the Magistrates Court to trafficking in a dangerous drug, namely 4,960 grammes of a powder containing 3,745 grammes of cocaine. She has been committed to this court for sentence.

The Summary of Facts, which has been admitted to, reveal that on the morning of 7 February 2016, the defendant was intercepted at Hong Kong International Airport upon arrival from Cebu via Manila, Philippines. Examination of her luggage revealed the cocaine which had been concealed inside a locked suitcase. The defendant was duly arrested and cautioned, and the defendant claimed she did not know what those substances were. The defendant said she had received the bag at Cebu Airport and would give the bag to her friend in Hong Kong.

But later, in the presence of an interpreter, the defendant said that she did not get the bag at Cebu Airport, but said that her friend said she had something for her to send and she was to meet her friend at a place called 5M Bacoor.

The defendant subsequently agreed to assist in a controlled delivery operation. The defendant then sent a message to a person called Arj Marokay via WeChat and she was subsequently informed to meet at the VP Apartment at No 149 Lai Chi Kok Road, Sham Shui Po. The defendant was taken to the address but no one turned up to collect the drugs.

An examination of the defendant’s mobile telephone revealed that she had several communications with a person called Arj Marokay and the messages revealed that, prior to boarding her flight to Hong Kong, the defendant had messaged that she had gone through Immigration and had made up stories to Immigration. Both herself and Arj Marokay messaged that they would celebrate later.

The defendant also inquired whether she would be allowed to enter Hong Kong, but was assured that there would be no fuss in Hong Kong because it was Chinese New Year and there would be a lot of tourists.

The defendant messaged finally to this person called Arj Marokay that she had landed in Hong Kong and that was the controlled delivery message and she was told by this other person to go to the VP Hotel and wait at reception.

The estimated retail value of the drugs was HK$5,322,080.

The defendant also had on her person a letter purportedly written by Ms Lorie Mendoza and it was subsequently found that this person was not a person who can be found in Hong Kong, and the ID card number that was stated in the letter was found to be false and the mobile number stated on the letter was found to be a prepaid SIM card, and this person, Lorie Mendoza, in the letter, had purportedly said that she had invited the defendant to visit Hong Kong for six days and would be responsible for all the defendant’s expenses during her stay. This purportedly would be a letter that would be shown to Immigration, had Immigration questioned her about her stay in Hong Kong.

The defendant is aged 29 and has a clear record in Hong Kong. She, in mitigation, said that, through her counsel, Ms Cheng, that she was unemployed at the time of her arrest. She is single and she is remorseful for what she has done. Ever since her arrest and incarceration, she apparently had assisted in Father Wotherspoon’s campaign to give information to the Philippines by way of a blog or website to dissuade others from being tempted to carry drugs into Hong Kong.

As Ms Cheng correctly pointed out, the sentencing guidelines have been laid down for trafficking in cocaine in the case of Abdallah Anwar Abbas [2009] 2 HKC 197 where the Court of Appeal suggested that for trafficking in 1,200 to 4,000 grammes would merit a starting point sentence of 23 to 26 years’ imprisonment. Also noted in that Court of Appeal judgment is the fact that for importation of the dangerous drug into Hong Kong involving an international element is an aggravating factor and would invite an enhancement of not less than 2 years for quantities above 1 kilogramme.

In this case, the quantity of drugs is 3,745 grammes and that would, in my opinion, invite a starting point sentence, after trial, of 25 to 26 years. In view of the fact that the defendant has a clear record in Hong Kong and her participation, as I said, in Father Wotherspoon’s campaign, I would adopt a lower starting point of 25 years. As pointed out in Abdallah’s case, there would be an enhancement for the international element of importing into Hong Kong and I would enhance this 25 years’ starting point by 2 years, thus giving us a total of 27 years.

Then there is the fact of the defendant’s plea. Giving her one-third off for her remorse, therefore, and plea, that will reduce the sentence to 18 years.

And then I have to consider the assistance that she gave to Customs by participating in the controlled delivery operation. Although unsuccessful, however, as Ms Cheng had pointed out, in the case of HKSAR v Jardin Rodela Maningas, CACC 278/2011, the Court of Appeal recognised that although the operation was unsuccessful, the defendant should nevertheless be given a reduction in sentence because of her co-operation. As the Court of Appeal said at paragraph 16:

“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.”

So the Court of Appeal there reduced the sentence of 20 years and substituted it for a term of 18½ years’ imprisonment.

So in this case, I do recognise the participation of the defendant in this controlled delivery and I reduce the 18-year sentence, after the one-third off for her plea, by further reducing it by 1½ years, to 16½ years’ imprisonment.

As a further note, Ms Cheng had, in mitigation, prayed in aid the case I did in HKSAR v Otiende John Ochieng. That case, as I have said, is not a case which is applicable to all cases because it was a case that turned on its own facts, as I have stated very clearly in the body of my judgment, about the assistance which the defendant had given which did not result to anything because of certain matters between the different inter-departmental co-operation, and so it was an unusual circumstance and I had stated very clearly there that it was not to be reflected or used in other cases because that was a case that turned on its own facts.

So the defendant will go to prison for 16½ years.