HKSAR v. Castaneda Ortiz Jairo

HCCC 479/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 479 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, Mr Castaneda Ortiz Jairo, faces one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The particulars of the offence are that the defendant, on the 10th day of May 2014, at Customs Arrival Hall, Hong Kong International Airport, Chek Lap Kok, Lantau Island in Hong Kong, unlawfully trafficked in a dangerous drug, namely 0.98 kilogrammes of a powder containing 0.65 kilogrammes of cocaine.

He is convicted of the charge by the jury after a trial.

Evidence in the trial

According to the evidence adduced in the trial, the defendant was stopped and searched by the Customs and Excise officers at the Green Channel of Customs Arrival Hall at the Hong Kong International Airport on 10 May 2014 when the defendant arrived at Hong Kong from Doha. A search of the suitcase carried by the defendant, five packets of cocaine wrapped in tinfoil and plastic bags were discovered hidden in the suitcase. He was arrested and cautioned for contravention of the Dangerous Drugs Ordinance.

The defendant travelled from Colombia to Hong Kong via Doha. He spoke only Spanish. The defendant gives evidence that he came to Hong Kong for medical treatment. He had the name card of the doctor in his suit jacket pocket and the suit jacket has now gone missing.

The secretary of the doctor booked the hotel for him in Hong Kong. He had cancer in his right lung and he was to have an operation to be carried out in Kunming, China. The suitcase in question did not belong to him and he only carried a brown rucksack as his luggage. He knew nothing about the dangerous drug hidden in the suitcase and he did not traffic in them.

The street value of the dangerous drug in question at the time of the incident is estimated at HK$963,340.

Criminal Record

The defendant has a clear criminal record.

Mitigation

It is said in mitigation that the defendant is now 75 years old and any sentence will weigh heavily on him because of his age. The counsel for the defendant points out that it is a retrial and the defendant was sentenced to 21 years imprisonment in the previous trial. The defendant has now gone through two ordeals of trial. The defence counsel asks the court to sentence the defendant to less than 21 years imprisonment.

Sentence

According to the evidence in the trial, the defendant is a Colombian who has received no education at all. He was a farmer raising cows in Colombia. He was 72 years old when he committed the offence. Though he is of an elderly age, he should know very well the consequences of committing such a serious offence.

The court is of the view that there is no justification to depart from the sentencing guidelines for trafficking in cocaine laid down by the Court of Appeal in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, and HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197. According to these guidelines, for a quantity of 600 to 1,200 grammes of cocaine, the starting point is 20 to 23 years imprisonment.

The amount of cocaine involved in the present case is 0.65 kilogrammes. The starting point is therefore about 20 years imprisonment. The fact that this is a retrial and the defendant had gone through the ordeal of two trials, the court considers that this is not a valid mitigating factor.

The court therefore adopts 20 years imprisonment as the basic starting point. There is an aggravating factor in the present case in that the defendant brought the dangerous drugs to Hong Kong from another place. After considering the authorities such as HKSAR v Chung Ping Kun CACC 85/2014, the court enhances the basic starting point by 1 year and adopts 21 years imprisonment as the starting point for the present case.

The court is of the view that the defendant has no valid mitigation and the court therefore sentences him to 21 years imprisonment.