HKSAR v. Mata Ruiz Juan Antonio

HCCC 487/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 487 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 one count of trafficking in a dangerous drug, namely 6,910.8 grammes of a solid containing 5,908.7 grammes of cocaine.

In what is getting to be all too common nowadays, the defendant arrived in Hong Kong on 4 April 2016 from Dubai, his journey having started from Madrid. When intercepted by customs officers, he was carrying a duty-free plastic bag containing two metal boxes. Another six cylindrical boxes purportedly containing chocolate were placed also inside another duty-free plastic bag found inside his suitcase. When the metal boxes were opened, they were found to contain, apart from chocolate, a number of packages which were subsequently confirmed to be cocaine. Similar packages containing cocaine were also found in the cylindrical boxes.

The defendant was arrested and at the time of his arrest, he had a small amount of cash and two mobile phones. A total of 384 packages were seized which contained the total amount of cocaine which is the subject matter of the charge.

The estimated street value of the drug was HK$7,214,875.20.

Under caution, and interviewed with the assistance of an interpreter, the defendant said he had never been to Hong Kong and wanted to come here for fun. His journey had started from Malaga. The defendant also claimed in the interview that he had been approached by an unknown man while still in Madrid, asking him to deliver a bag of chocolates from Dubai to Hong Kong for a reward of €500, the reason being, the man explained to him, that his suitcase was full. After arriving in Dubai, the defendant asserted he met this man again at a café and this man gave him a duty-free plastic bag and said that he would be paid the reward upon arrival in Hong Kong.

The defendant denied knowledge of the boxes inside his suitcase as he said he had left the suitcase unattended when he went to the toilet in Dubai. The defendant claimed that he had been unemployed for four years and had a debt of €1,000.

Customs officers then retrieved the messages from the defendant’s mobile phone and which indicated that in fact the defendant had knowledge of the narcotics in his belongings. Also upon an investigation of the movement records of the defendant in Hong Kong, the movement records showed that he had been to Hong Kong in February 2016, which was contrary to what the defendant had asserted to customs officers under caution, that he had never been to Hong Kong.

The defendant is aged 47 and has a clear record in Hong Kong. With the co-operation of the Spanish authority, he appears to have had some 11 previous convictions in Spain, but none of it was drug related. According to Mr Whitehouse in mitigation, in the latter conviction, it was due to domestic violence and that was because his marriage had broken up bitterly. So in mitigation, Mr Whitehouse submitted that therefore he was desperate as he also was in financial trouble with the moneylenders and that is why he was tempted into doing trafficking to Hong Kong.

The only mitigation in this case is really his early plea.

Mr Whitehouse also submitted that the defendant had taken part in a controlled delivery but it was unsuccessful because he was handcuffed at the time, although it was not obvious to an observer, and he was surrounded by customs officers.

I inquired of Mr Cheng whether that was the case and according to what I have been informed by Mr Cheng, he said that the facts were that the defendant was intercepted at about 7 am in the morning and then he was sent to hospital at 8.35 am to see if he had any foreign objects concealed inside his body. He was returned to the airport at 9.40 am, whereupon customs officers then called a Spanish interpreter to speak to the defendant over the phone. The defendant had informed the interpreter, who subsequently informed customs, that he was supposed to meet the recipient of the drug in the arrival hall.

So at 11.35 am, this controlled delivery was arranged and I have no doubt it was doomed to failure because the defendant having arrived at 7 am in the morning, whoever was going to meet him must have realised that something was wrong if he had not come out by 11 o’clock, so let alone at 11.35 am when he was arranged to sit in the arrival hall until 12.15 when the operation was aborted. But as Mr Cheng pointed out, there is no doubt that the defendant was willing to co-operate in this controlled delivery.

As far as sentence is concerned, the Court of Appeal has laid down guidelines for trafficking in cocaine, which is to follow the guidelines laid down in Abdallah in 2008. It is recommended that for trafficking in between 4,000 to 15,000 grammes, the sentence should be between 26 to 30 years after trial.

In this case, the quantity is 5,908.7 grammes and I would consider that a reasonable starting point would be one of 26 years.

The court in Abdallah had also indicated that the sentence should be enhanced if there was aggravating factors present, and one of them being the international element, and that for trafficking in over 1,000 grammes, or over 1 kilogramme, the enhancement should not be less than 2 years.

In a normal course of events, I would therefore have added 2 years to the starting point of 26 years, therefore making a total of 28 years. But as I have said, the problem in this case is that the defendant was prepared and willing to co-operate by participating in a controlled delivery. The reason for the failure of the controlled delivery was not his fault.

Perhaps the customs department should reconsider what was done in this case and the wisdom of waiting so long for a controlled delivery operation when the defendant arrived at 7 am and waited some four and a half hours in order to arrange for this controlled delivery, I think the interpretation could have been arranged earlier.

As a matter of fact, I think, this controlled delivery failed not because of the defendant’s fault. Therefore, in light of that, I will not enhance the sentence for the international element because I take into account the defendant’s offer to participate and, in this particular case, it failed not because of his fault.

So I therefore would sentence the defendant to a starting point sentence of 26 years and I will reduce it by one-third. So the defendant will go to prison for 17 years and 4 months.