HKSAR v. Neris Da Silva Alencar Valdirene

HCCC 419/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 419 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, Neris Da Silva Alencar Valdirene, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts disclosed that the defendant, a Brazilian, arrived in Hong Kong from Rio de Janeiro together with a Brazilian male. Both were refused permission to enter upon arrival. Upon search, a pellet was found tied to her right inner thigh inside her underpants. When the defendant was asked in English whether the pellet contained drugs, the defendant nodded.

She was arrested and cautioned. As the defendant was suspected to have drugs concealed inside her body, she was taken to the North Lantau Hospital for examination. A pellet was found concealed inside her vagina. She was transferred to the Queen Elizabeth Hospital and the pellet was later retrieved from her vagina.

These two pellets were found to contain 1,766 grammes of a powder containing 1,182 grammes of cocaine with an estimated street value of HK$1,886,088.

During a video-recorded interview conducted later with the assistance of a Portuguese interpreter, the defendant gave details of how a man called Paulo had arranged for her trip to bring the drugs to Hong Kong. Paulo had suggested her husband to travel with her so she convinced her husband - that is the man who was refused entry together with her - to do so without letting her husband know what she was up to. She was given documentation by this Paulo and a hotel was arranged for her and her husband after arrival. She said that Paulo gave her the drug cocaine when her husband was not present. She was promised a house with four to five rooms as a reward for bringing the cocaine to Hong Kong.

The defendant is now 43 years of age. She has no criminal conviction in Hong Kong. Ms D Crebbin, mitigating on behalf of the defendant, informed me that the defendant was married and has a 6-year-old daughter with her ex-husband. The man who travelled with her, whom she told the police was her husband, was in fact a common-law husband. Since her arrest, the man had left her and cut all ties with her.

Ms Crebbin informed me that the defendant used to work as a salesperson, buying cheap clothing and perfume for resale. She was earning 5,000 reals which is about US$1,500 or HK$11,000 per month. She was able to make ends meet despite the fact that she had to pay for medical expenses for her daughter who had trouble with her trachea, and she herself suffered from nervousness or anxiety after being involved in a car accident when she was 16, suffering from head injuries. The defendant frankly admitted that she was tempted to traffic the dangerous drugs in order to have money to buy a house for her daughter.

Ms Crebbin also informs me that the defendant was born with learning difficulties so she was almost illiterate. Although the defendant knew what she was doing, that she had agreed to bring dangerous drugs into Hong Kong for a reward, she may not have been aware of the serious consequences.

Ms Crebbin submitted that the defendant is truly remorseful, had pleaded guilty and she wished to apologise to the court for her misdeed. The defendant herself had asked someone to help her write a letter to the court, expressing similar sentiments. Ms Crebbin asked me to be as lenient as possible to the defendant within the confines of 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 life imprisonment. The total quantity of cocaine involved here is 1,182 grammes which fell into the category of 600 to 1,200 grammes with a starting point of 20 to 23 years (see the case of HKSAR v Abdallah [2009] 2 HKLRD 437).

Having considered the circumstances of the offence, the quantity of cocaine involved and the background of the defendant, I am of the view that a starting point of 22 years is appropriate here.

In the case of Abdallah, the Court of Appeal held that if there is an international element in the trafficking, there should be an enhancement of at least 2 years for drugs above 1,000 grammes.

Whilst I appreciate the defendant might not have been aware of the serious consequences of her offence, I am not convinced that I should make a reduction in the enhancement for the international element. After all, an enhancement when there is an international element is a way of demonstrating to the international community how Hong Kong deals with drug traffickers. Further, a reduction of what is an appropriate enhancement would also send out the wrong message to the public, in that one’s unfortunate background has somehow become a licence to commit such a serious crime. Having said that, I am prepared not to make an enhancement of more than 2 years here. So for the international element, there will be an enhancement of 2 years.

The defendant has pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. There are no other grounds to further reduce her sentence. So with the now enhanced starting point of 24 years, with a one-third discount, the sentence is one of 16 years.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 16 years’ imprisonment.