HKSAR v. De Oliveira Francisco Moises

HCCC 100/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 100 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 De Oliveira Francisco Moises, pleaded guilty to one count of trafficking in a dangerous drug during the committal proceedings of this case.

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 26th day of July 2016, at Customs Arrival Hall B, Terminal 1, Hong Kong International Airport, Lantau Island, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 858 grammes of a solid containing 659 grammes of cocaine.

He is committed to this court for sentence.

Facts Admitted

On 26 July 2016, at about 1650 hours, the defendant arrived at the Hong Kong International Airport from Sao Paulo, Brazil, via Dubai. He was selected for customs clearance. Suspecting internal concealment, the Customs and Excise took the defendant to a hospital for examination. At 2130 hours the same day, the defendant discharged 21 pellets and a further 59 pellets were discharged between 26 July 2016 and 30 July 2016. These 80 pellets were a total weight of 858 grammes of a solid containing 659 grammes of cocaine.

In a record of interview under caution, the defendant admitted that he had been asked by an African guy named Papa, whom he had come to know through their friend, to bring the dangerous drug to Hong Kong for a reward of US$5,000. On arrival in Hong Kong, he would take a taxi to a hotel in which a room had been reserved for him and he was to wait to be contacted there. He had not yet received the reward of US$5,000.

At the time of the arrest, the defendant was found in possession of US$350, a mobile telephone, a hotel booking voucher for two nights.

The records of Emirates Airlines confirmed that the defendant departed Sao Paulo, Brazil, on 25 July 2016 to come to Hong Kong via Dubai. According to the defendant’s booking record, he was to depart Hong Kong on 7 August 2016 for Sao Paulo via Dubai.

Criminal record

The defendant has a clear criminal record.

Mitigation

The defendant is 37 years of age. He attended one semester in a university in Brazil from January to June 2016. The counsel for the defendant submits to the court a letter written by the defendant. The defendant states in the letter that he suffers from a serious infection and had been expelled from his family by his father. He studied law in a university for a short while but was unable to continue because of financial difficulties. He foolishly agreed to embark on the present misdeed for quick money and he now regrets for what he has done. Since the incident, he has reconciled with his father.

He asks for the forgiveness of the Hong Kong people and he has helped in the anti-drug campaign of Father Wotherspoon in posting his story on the internet to educate people so that they would not fall into the same trap as the defendant.

The counsel for the defendant tells the court that the defendant, apart from pleading guilty at the earliest opportunity, has also helped Father Wotherspoon in his anti-drug campaign as early as in February this year. The defendant has also given two non-prejudicial statements to the Customs and Excise in a bid to track down those people in Brazil who had given him the dangerous drug. The counsel urges the court to give the defendant discount in sentence for these matters.

The counsel emphasises that the defendant is genuinely remorseful. He asks the court to adopt a starting point of 20 years imprisonment and enhance it by 12 months for the international element involved. He also asks the court to give the full one-third discount to the defendant for his plea of guilty and also discount for his assistance given to the anti-drugs campaign of Father Wotherspoon and the assistance given to the Customs and Excise Department.

Sentence

According to the 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 600 to 1,200 grammes of cocaine is 20 to 23 years imprisonment. The amount of cocaine involved in the present case is 659 grammes. The starting point is approximately 20 years 3 months imprisonment.

There is an aggravating factor in the present case in that the defendant trafficked the dangerous drug into Hong Kong from another country. After considering the case of HKSAR v Chung Ping Kun, CACC 85/2014, the court is of the view that an enhancement of 12 months imprisonment is appropriate.

The court therefore adopts a basic starting point of 20 years and 3 months imprisonment and enhances it to 21 years and 3 months imprisonment to reflect the international element involved.

The defendant committed the present offence because of financial difficulties. This of course cannot be used 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 to the plea of guilty of the defendant, the court reduces the starting point to 13 years 8 months imprisonment.

In light of the arrest of the defendant by the Customs and Excise, the chances of the assistance given to Customs and Excise by the defendant to bear fruit are slim. However, the willingness and the act of the defendant to help the authorities to track down the drug traffickers is to be encouraged and the court is going to give some discount in sentence to the defendant in this regard.

The court having considered the whole circumstances, sentences the defendant to 13 years 3 months imprisonment.