HKSAR v. Fretes Baez Francisca Vitalina

HCCC 132/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 132 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 pleaded guilty before me to one count of trafficking in a dangerous drug. In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on her behalf.

The facts of the case may be summarised as follows. The defendant is a Paraguayan who arrived in Hong Kong by air from Brazil via Addis Ababa. Inside her suitcase were concealed three packets containing a total of 3,212 grammes of a solid and powder containing 2,844 grammes of cocaine. Under caution, she admitted she was promised a total of US$7,000 for the trip.

The defendant is 24 years old. She is married but now separated. Before she came to Hong Kong, she has two sons aged 4 and 6 respectively and a 1-year-old daughter. While she was in custody here, she gave birth to a boy. She obtained education up to Grade 9 and had worked as a saleslady in cosmetics and underwear. She was living with her parents, siblings and her daughter. She did not have a criminal record in Hong Kong.

In mitigation, learned defence counsel, Mr Chau, informed the court that the defendant was in financial difficulties and it was in such circumstances she was lured into this operation, hoping to earn some quick money. Mr Chau stressed that the defendant was only a drug mule who was exploited by the ringleader. She is now remorseful and has rendered assistance in the campaign launched by Father Wotherspoon to warn the vulnerable in the underprivileged places against similar exploitation by the trafficking syndicates.

Mr Chau also urged the court to take into account the guilty plea of the defendant and the fact that she did not have any criminal conviction record before. Mr Chau also informed the court that the defendant had provided information to the authority and such information had been remitted to overseas authority for investigation. Result for the time being is limited, but the investigation is still going on.

In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for sentence in Queen v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. Lau Tak Ming only provided a tariff for cases involving narcotic content up to 600 grammes. In HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal set out further guidelines for cases involving larger quantities. It was held that for cases involving narcotic content of 1,200 to 4,000 grammes, an imprisonment term of 23 to 26 years should be considered.

Further, it was held that the international element is an aggravating factor and enhancement of no less than 2 years’ imprisonment should be considered if the amount of narcotic was above 1 kilogramme.

In all the circumstances of the present case, I do not consider there are any reasons to justify departure from the tariff. I will enhance the starting point by 2 years for the international element and adopt 26½ years as the ultimate starting point.

The defendant pleaded guilty and for this reason is entitled to a one-third discount. As regards to her engagement in the campaign launched by Father Wotherspoon, in accordance with the guidance in HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249, inquiries were made to ascertain the extent and degree of participation of the defendant in the programme.

Information was provided by way of affidavit of Father Wotherspoon. The information was not disputed. The Father informed the court that a letter of the defendant setting out how she had become involved in drug smuggling had been posted on the website. The story of the defendant was also made known to the public in different websites. Family members and friends of the defendant had also helped in circulating her stories.

In HKSAR v Akinyi Grace Sylvia, CACC 324/2015, the Court of Appeal recognised efforts of such nature amount to assistance in combatting drug trafficking. Even though the assistance was not rendered directly to the authorities, it was recognised that the government and the community benefit from it ultimately. In that case, the Court of Appeal did not interfere with an otherwise rightly decided sentence and held that it would be a matter for the Executive to determine whether assistance of this kind by serving prisoners should be rewarded by use of the Executive’s power of clemency.

The defendant in the present case is not in exactly the same position as she is not yet a serving prisoner and the court is not considering whether to interfere with the sentence already imposed. A proper sentence should be imposed to reflect the criminality of the offence the offender had committed.

The campaign of Father Wotherspoon should be praised. Whilst the effort of the defendant should also be recognised, the situation is not the same as one where a defendant has provided valuable information in relation to a specific crime which led to a fruitful result. For the time being, the involvement in the programme of the defendant cannot be described as particularly distinct and effective. The Executive will be in the best position to assess the degree of contribution and its effectiveness if the defendant is to participate further in the campaign and decide whether such assistance should be rewarded by use of the Executive’s power of clemency.

However, in the meantime, as a gesture of encouragement, I am prepared to give the defendant a further discount of 5 months. The information which the defendant provided to the authority does not bear fruit for the time being. It seems what she provided is at least worth further investigation. I am persuaded that a further discount of 3 months can be given for what had taken place so far.

Having considered the whole circumstances, including mitigation submission, in my judgment, this is the extent of discount the defendant is entitled to.

For the above said reasons, you are sentenced to an imprisonment term of 17 years.