HKSAR v. Sperandio Acacia

HCCC 455/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 455 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 has pleaded guilty in the Magistrates Court to one count of trafficking in a dangerous drug, namely 3,080 grammes of liquid and solid which upon drying yielded 2,364 grammes of solid containing 1,881 grammes of cocaine. She has been committed to this court for sentence.

The facts reveal that the defendant, a 40-year-old Brazilian female, arrived in Hong Kong on 7 February 2016, through the arrival hall of the Hong Kong International Airport. She was found to be carrying in her suitcase three bottles and the bottles contained white liquid. Initial testing revealed that the liquid contained cocaine.

When arrested and cautioned, the defendant said a friend had given her the bottles and she did not know what they contained. She claimed that the purpose of her trip was to bring the bottles of wine to someone in Hong Kong as a wedding gift, as instructed by her friend in Brazil. At that stage, she did agree to take part in a controlled delivery mission but it was fruitless.

Upon my inquiry, Mr Cheung of the Department of Justice confirmed that the defendant had admitted to customs officers that she, upon arrival, was to check into a hotel and await the person to come and collect the wine. She was taken to the hotel and whilst in the hotel room she did communicate by WhatsApp with this person called “Prince”, who was her friend in Brazil. She was told to wait but this person never showed up.

In a cautioned video recorded interview, the defendant said that she had a small clothing business in Brazil and she earned about 3,500 Brazilian dollars and she also receive 2,000 Brazilian from her mother each month. She became acquainted with this person called Prince a month prior to her arrival in Hong Kong and this person Prince had asked her to come to Hong Kong to collect for him a sum of money in US dollars from his friend in Hong Kong. Prince alleged that he could not come to Hong Kong himself because his travel documents were illegal and Prince, at the same time, asked her to bring the three bottles of wine to Hong Kong as a wedding gift. The defendant admitted that she, upon reflection, found the whole arrangement to be quite strange.

The liquid was subsequently analysed by the government chemist and found to contain the amount of drugs as stipulated in the charge. At the time of her arrest, the defendant possessed cash of US$1,487 and 752 Brazilian currency and two mobile phones. She said she was supposed to stay in Hong Kong until 17 February 2016.

The retail value of the drugs is about HK$3.3 million.

The defendant has a clear record both in Hong Kong and in Brazil, and her family background appears to be that she is divorced and she has two children being looked after by her mother in Brazil. She also said to customs officers that she was studying to be a doctor in Bolivia and would only go back to Brazil during vacation. She also claimed that there is nothing wrong with her health.

In mitigation, Mr Raffell has said all he can possibly say in this type of cases. We have in the Court of First Instance seen so many of these drug mules, we call them, couriers of drugs from different continents around the world, and Father Wotherspoon and his campaign is well known in these courts, as in other courts, to try and educate the very people in these continents about the serious imprisonment that they would face if they brought drugs into Hong Kong.

According to Father Wotherspoon’s letter, he claimed that the campaign had met with some success in East Africa and Columbia and Father Wotherspoon said that the defendant had assisted him in relation to sending information on the blog which he had set up and engaging her family and friends in South America to support his campaign.

Father Wotherspoon has also alleged in his letter that the defendant’s information to target a Sao Paulo Nigerian using various names who is associated with her and several other women in detention in Hong Kong for drug trafficking, and, apparently, the defendant has provided a photo of the Galleria Shopping Mall in Sao Paulo where he operates and also a picture of him. Father Wotherspoon criticised the Hong Kong Customs and Hong Kong Government for not being more proactive in acting upon the information provided by people like the defendant.

In effect, I find this to perhaps be an unfair criticism, because the Hong Kong Government and authorities are actually dealing on such information with overseas countries over which they have no control. We can only hope for co-operation from the authorities in the various countries around the world in our fight against drug trafficking, and the co-operation, whether forthcoming or not, is actually beyond the control of the Hong Kong Government and Hong Kong authorities and all our authorities can do is give the information that we have and hopefully they will be acted upon.

So it is difficult, I think, for Father Wotherspoon to generalise that the Hong Kong Customs and Hong Kong authorities are not doing sufficiently on the information provided.

The defendant’s mitigation is that she came to Hong Kong bringing the cocaine, not for any reward, but for a free trip. She has come halfway round the world and she is not a teenager. She is aged 40 with some experience of life. She is divorced. She has two children. So she is really the architect of her own misfortune.

Hong Kong is fighting a constant battle against drug mules, as Mr Raffell says, because of the accessibility of our ports and our airports to people who are coming in with drugs and using it either as a transit point or to disperse the drugs in Hong Kong. So the Court of Appeal has laid down some guidelines as to the sentence that is reasonable for trafficking in large quantities of cocaine.

In the case of Abdallah [2009] 2 HKC 197, the Court of Appeal had said that for trafficking in 1,200 to 4,000 grammes of cocaine, it would merit a starting point sentence of 23 to 26 years, and for the large amount that we have here, 1,881 grammes of cocaine, it would merit a starting point sentence of 23 to 24 years.

On top of that, as Mr Raffell has recognised, there is the international element, and, for trafficking in such large sums, the Court of Appeal had said that the additional sentence should be not less than 2 years for the international element.

So, taking into account that the defendant has a clear record, I would adopt the starting point of 23 years and added to that 2 years for the international element which would give us a sentence of 25 years.

She has pleaded guilty at the earliest opportunity and that should be recognised, so she gets one-third off, bringing the sentence down to 16 years and 8 months.

As I have mentioned, the defendant did participate voluntarily in a controlled drug delivery which turned out to be fruitless and I do recognise that, as Father Wotherspoon said, she has participated willingly in his campaign to spread the word amongst the people in Brazil about the sentences in Hong Kong to stop people participating in this evil trade.

So I will give her a further discount of 4 months, and so that brings the sentence down to 16 years and 4 months.