HKSAR v. Orozco Ortiz Claudia Patricia

HCCC 209/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 209 OF 2016

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

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COURT:

Defendant, on 29 April 2016, you pleaded guilty before a magistrate to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You admitted that on 8 August 2015, at the arrival hall, Hong Kong International Airport, you unlawfully trafficked in 1,652 grammes of a powder containing 1,178 grammes of cocaine.

As a result of your plea of guilty, you were committed here to the Court of First Instance for sentence.

On 8 August 2015, you arrived in Hong Kong at about 7 pm from Colombia via Paris. You were selected for custom clearance upon your arrival. Nothing illegal was found in your suitcase. Before the custom officers conducted a personal search upon you, you told them you had drugs and when asked where they were, you pointed at your hip, and said “here”. Later, three packets of drugs were found inside your tailor-made tight shorts worn by you. These drugs, found in your shorts, are the subject of the charge.

When you were cautioned in English, you said the three packets were cocaine which you had obtained in Colombia. You told the officer that you were going to the Holiday Inn on Nathan Road. You then agreed to participate in a controlled delivery. At about 10.20 pm the same day, customs officers brought you to the ground floor of the Holiday Inn Golden Mile Hotel at Tsim Sha Tsui for the purposes of the controlled delivery.

By this time, the drugs that were originally carried in your shorts worn by you were taken and placed inside a suitcase. You then took your suitcase along with you to the lobby. At about 10.56 pm, two Colombian females approached and talked to you. Shortly, one of the females took away the suitcase, and as the three of you were leaving the hotel, you were intercepted by customs officers. The other two Colombian females were arrested for trafficking in dangerous drugs.

The three packets found upon you in your shorts had an estimated value of $1,689,996 at the time of seizure. You were taken back and in a subsequent video-recorded interview, you informed the customs officers of your occupation and that the reason and purpose of you coming to Hong Kong was to bring these drugs so that you could obtain money to repay all your loans.

You were promised a reward of US$13,000 and you had been given US$700 for your expenses in Hong Kong. The cash of US$555 found on you was the money you were given.

You are a Colombian national, aged 46. I am informed that you have a clear record in Colombia and in Hong Kong. You have completed college education, are married with five children aged 16 to 22. You work as a chef in a club in Colombia, Bogota, with a monthly income of about US$600. In respect of your health condition, you suffer from depression.

Mr Andrew Bullett, your counsel, has submitted to me medical documents from the Correctional Services Department confirming that you have been suffering, and have suffered from depressive illness for over 10 years. You are presently taking regular medication. Since your incarceration after your arrest in August 2015, you have had a number of medical issues. Firstly, it is in respect of your regular follow-up psychiatric treatment with specialists in Castle Peak Hospital for your depressive illness.

The other was removal of a skin nodule on your scalp which was suspected to be cancer in November 2015 sorry, it was cancer. After the surgery, it is said that you are most likely cured of the skin cancer, and there is no sign of recurrence. In March 2016, you suffered an acute right ischemic brain stroke, for which you were hospitalised for one week. The recovery was however rapid and complete. You were discharged with no neurological deficit.

Mr Bullett tells me, however, you do feel that you have had some hearing loss since you suffered this stroke. You have also had some gynaecological issues in the recent few months, and some hormonal problems and joint pain problems.

Quite correctly, Mr Bullett has pointed out that from the moment of your arrest, you have been completely co-operative with the authorities. When you were arrested, you immediately volunteered that you had cocaine on your person. You immediately, or soon thereafter, assisted the officers in this controlled delivery, in delivering the drugs to the Holiday Inn, for which the other two female Colombians were arrested. At the first opportunity, you pleaded guilty upon committal. Thereafter, you gave a non-prejudicial statement, and made an agreement with the prosecution to be a prosecution witness in the case against one of the other Colombian females who were arrested at the Holiday Inn.

Mr Bullett has said that the case against the other Colombian female who was originally the 2nd defendant in this case was weak, without your evidence, which was important, it is unlikely the prosecution would have succeeded in their prosecution against her. Therefore your evidence was important to the prosecution, and you have been and were willing until the very last moment, to give evidence against the other female Colombian arrested. The other female was arrested and charged, she pleaded guilty to the charge only last week, or the week before, and up until then, you were ready and willing to give evidence against her.

Mr Bullett has said this evidences your clear, positive assistance you have given to authorities, firstly in your controlled delivery, resulting in the arrest of the two Colombian women, thereafter, your willingness to give evidence against one of them who was eventually charged with trafficking in the same quantity of drugs that you brought in to Hong Kong.

He asks this court to give you a full discount for that co-operation. He has informed this court that you are personally in fear of retaliation in respect of your family, who are now living and residing in Colombia. Your cohabitant was contacted after your arrest, and he, too, was told to come to Hong Kong to see you, to bring drugs along with him, and to inform you not to give evidence, but for you to plead guilty. He eventually did not do so, but being frightened of the consequences, he has since left your home in Colombia and you are fearful for your family in Colombia by the organisers who asked you to bring the drugs to Hong Kong.

For this offence of trafficking in dangerous drugs, the drug being that of cocaine, the Court of Appeal has set down starting points for trafficking after trial, on conviction. And for these very large quantities of drugs, the leading case is that of HKSAR v Abdallah Anwar Abbas, for the quantity to which you had in your possession for the purposes of unlawful trafficking. That falls within the bracket of between 600 to 1,200 grammes, which is a starting point of between 20 and 23 years’ imprisonment.

In HCCC 208 it concerned the female Colombian,to whom I have already sentenced I took a starting point of 22 years and 9 months’ imprisonment for the same quantity of drugs. I propose to do the same in your case.

In your case, however, there is an aggravating factor to enhance the starting point, as you had imported, or brought these drugs into Hong Kong from Colombia, and in those circumstances, I consider an enhancement of 2 years’ imprisonment to that starting point to be appropriate. That would make a sentencing point, had you been convicted after trial, one of 24 years and 9 months’ imprisonment.

I accept that you have positively assisted the prosecution, in that as a result of that controlled delivery, the other Colombian female in HCCC 208 was arrested and charged for the same drugs, and eventually, she pleaded guilty. All along, you are willing to give evidence for the prosecution against her. However, as a result of her plea of guilty, you were unable to assist the prosecution in giving evidence against her. I have had regard to the case of HKSAR v Nam Ka Chai CACC 81/2016, where the court had considered, matters in respect of defendants who are willing to give evidence against accomplices, but were thwarted as a result of the accomplices pleading guilty. I do consider you deserve some discount for your willingness to give evidence against the accomplice female Colombian.

Defendant, for your assistance to the police and the prosecution, including your plea of guilty, I consider a discount of 45 per cent from the sentencing point of 24 years and 9 months’ imprisonment. I do not, in this case, think it realistic for me to give you any further discount in respect of any realistic aspect or prospect of harm do your family or your partner.

In the circumstances, defendant, you shall be sentenced to 13 years and 7 months’ imprisonment.