HKSAR v. Guimaraes Evangelista Claudimeire

HCCC 108/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 108 OF 2017

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

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COURT:

Defendant, you pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. This plea was entered before a magistrate sitting at the Eastern Magistracy on 27 March 2017. Upon your plea of guilty to the charge, you have been committed here to the Court of First Instance to be sentenced.

On the date of commission of the offence of trafficking, that is 22 May 2016, you arrived at the Hong Kong International Airport on a flight from Brazil. You were refused entry to land in Hong Kong by the Immigration Department. You were, however, referred to customs for clearance. Customs officers examined your suitcase and the drugs as stated in the charge, of 1,417.50 grammes of a solid containing 1,093.10 grammes of cocaine, were found hidden in 17 combs and 21 bottles of hygiene products. The cocaine was found in 38 packets, concealed in each one of those items.

Mr Cahill, your defence counsel, has mitigated on your behalf before me today and he has said the facts of this case, as to how you became involved in the trafficking of drugs, is different from the other types of cases. You were a nurse from your home country of Brazil, working at two different hospitals. It was your intention to come to Hong Kong on a holiday. Word spread quickly in the hospital that you were coming for a holiday and when a colleague of yours came to know of this, she approached you and asked you to do her a favour. That favour was to transport these combs and other items for the use of her sister, who runs a hair salon in Hong Kong. You agreed.

However, you knew that these items contained drugs. Yet you foolishly and, as Mr Cahill says, stupidly agreed to do this as a favour, with no financial reward. Mr Cahill explains that you agreed to do this favour as this is a cultural mentality of persons in Brazil. I have to say I find that very difficult to follow, that given the fact that you are a nurse, an educated person, knowing the extreme devastation that drugs can cause to people, having experience of dealing with drugs, I am sure, daily in your position as a nurse, would agree to such a serious and risky venture of taking drugs hidden in these products, without reward.

I am, unfortunately, unable to accept that you did this just for a favour. You did this clearly knowing you were trafficking in drugs from Brazil to Hong Kong, and as Mr Cahill says, the most powerful and strongest mitigating factor is your plea of guilty at the very earliest opportunity. I accept, as Mr Cahill says, that you are a foreigner in our Hong Kong prisons and it has not been easy for you. But there is case law that provides that despite being a foreigner finding it difficult in Hong Kong prisons, is no mitigating factor.

I have also heard that you have assisted Father Wotherspoon in spreading the message of the danger of taking drugs overseas and spreading this through the internet, through your family and friends in Brazil. This is something, as I mentioned to Mr Cahill, which the court greatly appreciates, however, it is not a factor which can be used as a reduction or as mitigating factors from the starting point.

It is very unfortunate that you, being a qualified nurse for some 13 years, should venture into this serious offence and for that, of course, you will pay a heavy price as the laws in Hong Kong are strict for those people trafficking in these very dangerous drugs and particularly for those people bringing them into Hong Kong.

Defendant, the amount that you trafficked in was 1,093.10 grammes of cocaine. The Court of Appeal has laid down guidelines for trafficking in these amounts in the case of Abdallah [2009] 2 HKLRD 437. In Abdallah, for those traffickers trafficking in 600 to 1,200 grammes of cocaine, had they been convicted after trial, an appropriate starting point would be one between 20 and 23 years’ imprisonment. Given the quantity of drugs that you were trafficking in, had you been convicted after trial, the appropriate starting point in this case would be one of 22 years’ imprisonment.

In Abdallah, the Court of Appeal said the enhancement for an aggravating factor should not be less than 2 years’ imprisonment if the amount of narcotic involved was above 1 kilogramme. The amount of narcotic involved in this case is over 1 kilogramme. You had brought these drugs into Hong Kong. There being an international element here calling for enhancement, the enhancement should therefore be one of 2 years’ imprisonment.

The sentencing point then, had you been convicted after trial, is one of 24 years’ imprisonment. Your early plea of guilty entitles you to a one-third discount.

In the circumstances, you shall be sentenced to 16 years’ imprisonment.