HKSAR v. Penascosa Imelda Gimena

HCCC 379/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 379 OF 2016

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

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COURT:

Imelda Penascosa, it was a very wicked and foolish thing that you did, in attempting to bring over 3 kilogrammes of cocaine into Hong Kong. That cocaine had a street value of over HK$4 million. And had that cocaine got onto the streets of Hong Kong and been sold by drug pushers, it would undoubtedly have caused a great deal of harm to many people.

It is clear that you were cruelly used by others, by some very evil people. Of your role, I am quite satisfied that, it was at the lowest level of the chain of drug trafficking. You were the mule, or the courier. But, the fact remains that you were a willing mule and you were aware that you were attempting to bring a very large quantity of cocaine into Hong Kong, and I have to tell you, and I am sure that Mr Grounds has told you this, that the fact that you are attempting to bring this very large quantity of cocaine into Hong Kong aggravates your offence.

I am aware of your unhappy personal circumstances, of the fact that your partner has apparently abandoned you. But I have to tell you that that is a matter that I cannot take into account in determining the length of your prison sentence.

You have mitigation. So far as is known, you were of clear record before August of last year, and this, so far as is known, is your first offence, and you are now 45, it would appear that you were 43 when you committed this offence.

The other aspect of your mitigation is that you agreed to assist the Customs & Excise officers in locating Jennifer at the airport. Regrettably, this was unsuccessful, but nevertheless, you are entitled to some credit for your assistance.

And thirdly and certainly most importantly, you have pleaded guilty to your offence. A plea of guilty is the most powerful mitigation. It shows realism on your part. It shows that you accept your guilt. And it shows that you are remorseful. Although your plea of guilty came very late in the day, on the first day set down for your trial, you will receive full recognition for it. And here, you are very fortunate. The Court of Appeal in Hong Kong has recently said that people who plead guilty on the first day of their trial are not entitled to the same level of reduction of sentence as those who plead guilty at the earliest opportunity in the court process in Hong Kong.

However, and as Mr Acton-Bond, counsel for the prosecution agrees, as you were committed for your trial before the Court of Appeal gave that decision, you are entitled to expect a reduction in your sentence that would be the same as that given to a defendant who pleads guilty at the earliest opportunity.

From what he said to me on your behalf this morning, I know that Mr Grounds has told you that there are very clear guidelines from the Court of Appeal to all judges as to how we are to sentence people who traffick in dangerous drugs, and Mr Grounds will have told you that judges are expected to stick to those guidelines, unless there are very strong reasons for them not to do so, and there are no very strong reasons in your case.

Following those guidelines, and they are based on the active content of the dangerous drugs involved, in your case, that was 3,006.7 grammes of pure cocaine in a mixture of 3,824.5 grammes of powder. Had you taken this case to trial, and had a jury found you guilty, I would have had to start to assess the length of your sentence as between 23 to 26 years’ imprisonment. And to that, I would have had to add a further 2 years’ imprisonment because of the international element, the fact that you were bringing this cocaine into Hong Kong. So you could have been facing a sentence of as high as 28 years’ imprisonment.

However, as I accept that you are at the lowest level of trafficker, and as I accept that you were a dupe, albeit a willing one, knowing full well what you were doing, and knowing that it was very wrong to do so, and as I accept that you were of clear record before August 2016, I am taking an initial starting point, in your case, of 23 years’ imprisonment, and adding a further 2 years to that, because of the international aspect.

So when I asses the length of your sentence, I am starting from a maximum starting point of 25 years’ imprisonment. I am making two reductions from that. One is of one-third to reflect your guilty plea, and the other is of 5 per cent to reflect the fact that you agreed to assist the Customs & Excise officers catch the woman Jennifer.

This reduces your sentence very considerably. It reduces it to one of 15 years and 5 months’ imprisonment, and that is the sentence that I now pass upon you.