HKSAR v. Ibarra Colmenarez Yairin

HCCC 175/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 175 OF 2017

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

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COURT:

On 4 September 2016, at the Hong Kong International Airport in Hong Kong, Ibarra Colmenarez Yairin was intercepted by officers of the Hong Kong Customs and Excise Service. She had just arrived on a flight from Manila in the Republic of the Philippines.

The suitcase that she was carrying was examined and inside the suitcase was three boxes containing 37 foil packs of a mixture containing 2.98 kilogrammes of a mixture containing 1.9 kilogrammes of cocaine. The defendant was also found to be in possession of amounts of currency of three different nations of various amounts and as far as I could see, that amounts to about $2,000.

She was interviewed under caution by the Customs and Excise Service and explained how she worked in Venezuela as a stylist with an income which was insufficient to support her family. She undertook other part-time work to alleviate her financial position. She told the officers that she had become acquainted with two Brazilian men who offered her a free trip to Hong Kong, all expenses paid. Eventually, she went to Brazil where she again met those males and she travelled to Hong Kong via Addis Ababa and Manila.

On arrival in Manila, she stayed in a hotel for seven days. She was given three boxes of what she was told were haircare products which would be relevant to her business in Venezuela. She had some money with her and there was apparently an unsuccessful attempt to supply her with a further US$1,000 but somehow that did not succeed. She was told she would receive money in Hong Kong, presumably after she had cleared customs and left the airport. Inquiries by the Customs and Excise Service confirmed the route of her travel.

The defendant was arrested at the airport and spent two days in the custody of the Hong Kong Customs and Excise Service. She was then placed before a magistrate and has been in custody ever since.

The cocaine carried by the defendant had a street value at the time of the seizure of HK$3.3 million.

The defendant is 31 years old. She is a Venezuelan national, holding the passport of that country. She has no previous criminal record in Hong Kong. She has a son and two daughters, as I understand it, young children. Her parents are quite old. She has primary school education and prior to her entering into this drug trafficking venture, she worked as a hair stylist together with other menial jobs. I will proceed upon the basis that she has no previous convictions in Venezuela.

A letter provided by the defendant to the court expresses her deep regret for committing the offence. She outlines her family circumstances and explains in vivid terms the pressure she was under and which caused her to succumb and commit this offence. She was, so she says, desperate. Her remorse has a number of tangible manifestations aside from her plea of guilty at the earliest stage. She has provided non-prejudicial statements to the Customs and Excise Service. Apparently, the professional judgment of the Customs and Excises Service is that these would probably not be of great assistance in the direct prosecution of any persons.

More than that, she has embarked on an enterprise through the good offices of Father John Wotherspoon who has used the internet to seek to persuade persons who, like the defendant, could be characterised as drug mules, not to assist the traffickers in Africa and South America. The defendant has contributed to this campaign. I have the benefit of a letter from Father John and he records not only the significant contribution of the defendant, but with her contribution and the contribution of others that he has recruited, there appears to be a diminution in the number of drug trafficking mules coming to Hong Kong. In his very thoughtful letter, it appears to me that Father John accepts that it is early days yet, but there are promising signs in this regard.

Not only has the defendant participated in this effort, but she has enlisted family members to do so as well. This is, in my opinion, tangible evidence of not just remorse, but of a determination to contribute in a meaningful way to stop or at least to slow down the pernicious trade of which the defendant was, at one time, a small cog in the system.

It is difficult to make a meaningful comparison between this activity and assistance to law enforcement authorities because this is devoted to prevention of further crimes as opposed to detecting and possibly punishing those who commit crimes. Also, it would be invidious of me to say that these activities are, in comparative terms, better or worse or even the same. Certainly, the prevention of criminality of this kind, if it works, is a highly desirable thing and it is plain that the defendant has contributed in a clear and tangible way to that effort.

I respectfully agree with the observation of Barnes J in HKSAR v Romero Cunas Liz Evelin [HCCC 403/2016] where Barnes J explicitly recognised the beneficial aspects of Father John’s campaign and the relevance of participation in sentencing terms that it might have. The recognition had a tangible relevance of sentencing and Barnes J ordered a further discount of 6 months in the context of a sentence for trafficking in cocaine. The amount of drugs which were trafficked in that case was on no account as much as the present case and the measure of that can be seen in the starting point of 16½ years that she adopted in that case. I take greatly to heart the observations of Barnes J when she observed, at paragraph 27 of her reasons:

“I am prepared, in order to give encouragement to this defendant and other defendants in a similar situation, to regard her willingness to contribute to the campaign [of Father John] and her effort in getting support from her family to warn and discourage others who traffic in dangerous drugs, as a constructive contribution to Hong Kong society and to be treated on a par with positive good character for the purpose of sentence.”

In some respects, it is somewhat invidious to start making minute comparisons of what was done in Romero (above) with the instant case. A better approach is to look at the substance of what the defendant in the present case has done and it seems to me that that is real and tangible and, so it appears to me, likely to continue to be so. As I say, Father John seems to have some cause for optimism that the campaign is working. In due course, I intend to recognise this activity on the part of the defendant in a tangible way, by way of a reduction of sentence.

I make the observation that continued, active, substantial participation in such programmes might - I repeat the word “might” - well attract the attention of the Chief Executive of the Hong Kong Special Administrative Region. However, that is a matter for the future and very much a matter for the Chief Executive. Nothing in these reasons can or should be construed as a promise or indication on behalf of the Chief Executive.

Trafficking in dangerous drugs is viewed by the courts and the community of Hong Kong in a very serious light. That is especially so when those drugs are brought across our borders. The effects of cocaine usage are well known and in the context of prolonged use of cocaine, none of them are good. That is so from two standpoints.

The first standpoint is that of the user. The physical and mental harm that can be done can be very serious indeed. The second standpoint is that prolonged cocaine use can have serious consequences for the community in many cases because the effect is not limited to the user and services such as hospital and medical services, often at a cost to the community, are often engaged in the treatment of the prolonged impact of the ingestion of cocaine by an individual.

The clear deleterious effect of the use of cocaine is reflected in the guidelines provided by our courts for trafficking in cocaine and the sentencing thereof. The source of guidelines in relation to the trafficking of cocaine starts with the decision of R v Lau Tak Ming [1990] 2 HKLR 370. In Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Li Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in Lau Tak Ming & Others are appropriate for cocaine.

However, the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437 revised the guidelines in relation to the trafficking of quantities of cocaine greater than 600 grammes. HKSAR v Abdallah (above) now provides clear guidelines for sentencing in relation to cases of trafficking in cocaine.

The relevant guideline applicable to the present case is for the trafficking 1,200 grammes to 4,000 grammes. For trafficking in that range, the Court of Appeal suggests a sentence of somewhere between 23 and 26 years’ imprisonment. Our courts have also provided guidelines to provide consistency in sentencing in relation to the consequences of bringing dangerous drugs into Hong Kong in quantities such as that which is found in this case.

In HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal suggested that for quantities between 500 grammes and 1 kilogramme of drugs such as cocaine, being brought across Hong Kong’s borders, an enhancement of between 1 and 2 years would be justified to reflect the fact that the drug which is the subject of the charge has been brought across our borders. However, it is appropriate to note in that case, that is HKSAR v Chung Ping Kun (above), at paragraph 7, the court also observed: “Sentencing is an art, a pure mathematical approach, even for trafficking in drugs where tariffs are provided, will ignore other relevant considerations”.

In Chung Ping Kun, the observation which plainly exercised the mind of the Court of Appeal was that notwithstanding that the appellant in that case was a persistent offender and of relative advanced age, the court considered, given his age and what would be the appropriate sentence for the quantity of drugs trafficked by him across Hong Kong’s international borders, he might actually spend the rest of his life in gaol and that was a factor which could not be ignored in the disposition of his case.

In the present case, I cannot ignore the seriousness of what the defendant has done. It is serious. It is more serious because the drugs in question were brought across our borders. As I have already indicated, the community of Hong Kong regards drugs and the trafficking in them in a very serious light and that is reflected in the sentences commonly imposed by our courts.

Against that, the history of the defendant in this case represents a depressingly familiar story. A woman struggling to support herself, her children and her family. She was doing so in a country riven with political and economic difficulties. She was plainly exploited, to an extent, by two Brazilian gentleman involved and was on any view, simply being employed as a mule. What is not clear to me is the degree to which she approached this with her eyes open. Plainly, short-term economic gain on her part was a highly relevant factor.

As a courier of dangerous drugs, she is, on one view, at the low end of culpability in the international drugs trade. Against that, the trade would not survive for an instant without persons such as the defendant carrying the drugs.

Those who manufacture drugs elsewhere and those who organised this woman to undertake the journey that she undertook do not lose what this woman will lose. She is away from her children, her parents and her family and her community and will be for a substantial period of time while she serves her sentence. The injustice of all of this is that those people, the manufacturers, the distributors and so on, will be pleasantly sitting at home tonight.

Against the background of what I have just noted, trying as best I can to balance justice with mercy, the approach to sentence I am adopting is as follows. The sentence I would have imposed before trial would have been imprisonment for 23 years. I would have enhanced that sentence by an additional year for the fact that the drugs were trafficked across our borders. That makes a total of 24 years. That is the total that this woman would have received had she conducted a trial.

However, she has pleaded guilty and has done so at the earliest practical time under the provisions of section 80C(3) of the Magistrates Ordinance. Our courts have consistently recognised a plea of guilty at that stage, as evidence of remorse, is worthy of a reduction in sentence of 33 per cent. That would reduce her sentence to about 16 years.

I have outlined her family circumstances earlier in these reasons and, critically, I have noted her contribution to the stopping of this ghastly trade and that her contribution is a tangible one. There is no tariff or guideline for such a contribution and that is probably not only understandable, but probably a good thing. I propose to take 6 months off the sentence that I would otherwise have imposed.

Upon that basis, the order of this court is that the defendant serve a prison term of 15 years and 6 months and that is the order of the court.