HKSAR v. Ferreira De Lima Jose Carlosarlos

HCCC 96/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 96 OF 2017

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

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COURT:

The defendant, Mr Ferreira De Lima, Jose Carlos, pleaded guilty to one count of trafficking in a dangerous drug during the committal proceedings. The offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The particulars of offence are that the defendant, on the 13th day of July 2016, at Customs Arrival Hall B, Hong Kong International Airport, Lantau Island, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 2,020 grammes of a solid containing 1,403 grammes of cocaine.

He is committed to this court for sentence.

Facts Admitted

On 13 July 2016, the defendant arrived at the Hong Kong International Airport from Brazil via Dubai. He was refused landing by the immigration authorities and was taken to the Customs and Excise for clearance.

It was found that a total of 2,020 grammes of a solid containing 1,403 grammes of cocaine were concealed inside the backpack and suitcase of the defendant. The defendant was arrested for trafficking in a dangerous drug.

In a video-recorded interview subsequently conducted, the defendant admitted inter alia that he was married with two children, aged 4 and 5. He had been laid off from his job of a topographer assistant about 3 months before he came to Hong Kong. He was in debt of about 1,050 Brazilian real and he needed 5,000 Brazil real to pay for his father’s surgery for hernia and prostate illness.

Through a Brazilian male named Joao Paulo, whom he had known for about five to six months, arrangement was made for him to come to work in Hong Kong as a dishwasher. Paulo told the defendant that he would receive 10,000 to 11,000 Brazilian real for the job. Paulo arranged the trip for him and gave him US$1,000 for expenses. The amount of US$972 found on him was the reminder of the money. He was to stay in Hong Kong for 15 days.

The suitcase and backpack were given to him by Paulo and he was to give them back to Paulo in Hong Kong. He denied to have any knowledge of the dangerous drug found inside the suitcase and the backpack.

At the time of arrest, the defendant was found in possession of US$972, 475.65 Brazilian real and 1,000 Columbian peso. The records of the Emirates Airline confirmed that the defendant departed Brazil on 11 July 2016 and arrived in Hong Kong on 13 July 2016 via Rio de Janeiro and Dubai. According to his booking, he was to depart Hong Kong for Brazil via Dubai on 20 July 2016.

Criminal record

The defendant has a clear criminal record.

Mitigation

The defendant is aged 29 and is married with three children, aged 4 and 5 years and 9 months respectively.

The counsel for the defendant submits to the court a letter written by the defendant. The defendant says in the letter that he committed the offence because he needed money for the surgery of his father who suffers from prostate cancer and for the health issues of himself and one of his children. He now deeply regrets for what he has done.

The counsel for the defendant also submits to court a letter of Father Wotherspoon saying that the defendant has written letters which were posted on a special anti-drug campaign Facebook site of the priest, aiming at stopping the flow of drug mules from various parts of South America. It is said in the letter that since the anti-drug campaign, the number of drug mules from South America has dropped.

The counsel for the defendant emphasises that the defendant is genuinely remorseful, thus pleading guilty at the earliest opportunity and helping Father Wotherspoon in the anti-drug campaign. The counsel urges the court to adopt a starting point of 23 years’ imprisonment and enhance it to 25 years’ imprisonment for the international element involved.

He asks the court to give the full one-third discount for the plea of guilty of the defendant and further discount for the assistance of the defendant given in the anti-drug campaign of Father Wotherspoon.

Sentence

According to the sentencing guidelines laid down by the Court of Appeal in AG v Rojas [1994] 1 HKC 342 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, the starting point for trafficking in 1,200 grammes to 4,000 grammes of cocaine, is 23 to 26 years imprisonment. The amount of cocaine involved in the present case is 1,403 grammes. The starting point should be about 23 years 2 months imprisonment.

There is an aggravating factor in the present case in that the defendant trafficked the dangerous drug into Hong Kong from a foreign country. After considering the case of HKSAR v Chung Ping Kun, CACC 85/2014, the court is of the view that an enhancement of 2 years imprisonment is appropriate to reflect the international element involved in the case.

The court therefore adopts a starting point of 23 years 2 months imprisonment and enhances it to 25 years and 2 months imprisonment.

Financial difficulty cannot of course be taken as an excuse to offend the law and is certainly not a valid ground for mitigation.

Having considered the cases of HKSAR v Romero Cunas Liz Evelin, HCCC 403/2016, and HKSAR v Rodas Suarez Carlos Hernan, HCCC 447/2016, which deal with discount to be given for assistance given to the anti-drug campaign of Father Wotherspoon, and giving discount for the plea of guilty of the defendant, the court sentences the defendant to 16 years 3 months imprisonment.