HKSAR v. Faustino Hidalgo Cesario

HCCC 211/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 211 OF 2017

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

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COURT:

Defendant, you pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You admitted that on 19 September 2016, at the Hong Kong International Airport, in Hong Kong, you unlawfully trafficked in 1.28 kilogrammes of a liquid containing 901 grammes of cocaine. This plea of guilty was entered before a magistrate on 26 June 2017 and you had been committed here, to the Court of First Instance, for sentence.

On 19 September 2016, you arrived at the Hong Kong International Airport from Sao Paulo, Brazil, and you were intercepted for customs clearance. Nothing illicit was found on you but you were sent to the North Lantau Hospital for examination. It was ultimately confirmed that you had foreign objects concealed in your body. You were arrested. Over the next following four days, you excreted a total of 36 packets containing the drugs in the quantity as mentioned in the charge.

At the time of your arrest, you had cash of US$1,200, 182.35 Brazilian reals and 42.41 Peruvian sols as well as two mobile phones on you.

The estimated street value of the dangerous drug seized was in the amount of HK$1,422,080.

You are a Peruvian male, aged 41 and have a clear record. You have completed primary school education and worked as a construction worker in Brazil. The amount that you allege to have earned is of course in contention but it matters not for the purposes of this sentence. You are single and have four children in Peru, aged 13, 11, 8 and 5. Your father has passed away and your mother is of ill health.

Your counsel, Mr Andrew Raffell, has mitigated on your behalf and quite properly has informed the court that your greatest and strongest mitigating factor is your very early plea of guilty at the committal proceedings. These facts that you had swallowed these drugs, coming into Hong Kong, is clearly that you did this for money and you were in desperate need of money and you took that risk.

Mr Raffell has also informed me about some personal background and really that boils down to the fact that your mother’s ill health caused you to borrow money, and you had recently been a banana grower but that failed and you borrowed further money and, as a result, you fell into the hands of some Nigerian man in Brazil, and you were to be rewarded several thousand US dollars if you were to have smuggled these drugs into Hong Kong.

The offence of trafficking in dangerous drugs, as I am sure you have been well informed by your counsel, is a very serious offence. There are clear guidelines laid down by the Court of Appeal for sentencing traffickers like yourself. The drugs are not of a small amount. You had been trafficking in 901 grammes of cocaine. The Court of Appeal have laid down guidelines in Abdallah. For amounts between 600 to 1,200 grammes of cocaine, the starting point after trial is one of between 20 and 23 years’ imprisonment.

Defendant, for the amount that you have trafficked in, that is 901 grammes, had you been convicted after trial, an appropriate starting point would be one of 21 years and 6 months’ imprisonment.

In looking to see whether there are any aggravating factors in committing this trafficking offence which call for enhancement of the starting point, there is an aggravating factor in that you had imported these drugs into Hong Kong from aboard. That is what is commonly referred to as an international element. For that amount of drugs, I further enhance your sentence by one of 21 months. That would make a sentencing point, had you been convicted after trial, of 23 years and 3 months’ imprisonment.

You have pleaded guilty at the earliest opportunity. For that, you will be awarded a discount of one-third.

In the circumstances, you shall be sentenced to 15 years and 6 months’ imprisonment.