HKSAR v. Tolentino Vargas Ayde Flor

HCCC 11/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 11 OF 2017

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

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COURT:

Ms Tolentino, on 9 January 2017, you pleaded guilty before the Eastern Magistracy to one count of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and accepted that you arrived at Hong Kong International Airport on 19 May 2016 with 750 grammes of liquid cocaine concealed inside a false compartment within your luggage, having travelled to Hong Kong from Peru via Sao Paolo, Brazil and Dubai.

Under interview, you admitted that you have been asked to traffic dangerous drugs by someone called Benny for a reward of US$2,000. He and another person gave you the drugs, told you where to go, and provided you with US$250 for expenses.

The estimated street value of what you brought into Hong Kong was $1,279,566. You, of course, would have had no idea of the value of what you carried, nor of the consequences of the amount of dangerous drugs you are asked to carry into Hong Kong. That is why people such as yourself are used as drug mules.

The difficulty the courts face in Hong Kong and elsewhere in the world is that the trafficking of dangerous drugs is an evil which affects very many people directly and indirectly affects their families and communities. Drug dealers are always looking for new ways to transport their goods and to avoid detection, and they use people who are wholly ignorant of what could happen to them if they were caught carrying large quantities of dangerous drugs.

It may not feel like it, but you were very lucky that you were destined for Hong Kong, and not Indonesia, Malaysia or Singapore. Your fate would have been far worse. But I also accept that the sentencing regime elsewhere in the world is far less punitive. However, we are in Hong Kong, and in Hong Kong, we are doing our very best to stop trafficking in dangerous drugs.

Ms Tolentino, you are 20 years of age; you are just an adult and of good character. But you knew what it was you were doing, as evidenced by your remorse and your wholly commendable attitude to our investigative and judicial process.

You were a waitress in Peru, earning the equivalent of just HK$70 per day at the time you were approached to carry out this crime and, no doubt, the offer of US$2,000 was too tempting, especially for someone so young and inexperienced. But you cannot be treated wholly differently from others who come before the courts, otherwise, they can properly say they have been treated unfairly. There has to be seen to be parity of sentence.

But there is also an acceptance by the courts that individual sentencing is still appropriate, and your circumstances can afford a degree of discretion. I acknowledge that a large proportion of those who come before the High Court come from circumstances such as yours. Who else would be foolish enough to take such risks for what is in relative terms a small amount of money? Although, to you, I imagine it felt like a fortune and an end to your troubles.

But even amongst those who import drugs into Hong Kong, there are facts which distinguish you. You are not very young, but you are unworldly and naïve. You have no concept of the harm you were doing, or the risks you took. You are clearly an otherwise decent human being. That is evidenced by your completely unprompted letters of thanks and respect towards those of the Customs & Excise, and towards those who have strived so very hard to do everything they can to ease the burden upon you.

From what I have been told and read, I have no doubt at all that what Mr Grounds advances on your behalf is true. Your attitude has been exceptional. And I believe there is a place for true remorse. It is a rare thing. Your acceptance of what you have done and your desire to stop others being so foolish and your drive to make the most of your situation, is an example of the very best of what the courts can possibly hope for for those who find themselves in your position. I commend you for it.

The guideline case for trafficking in between 600 and 1,200 grammes of cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437, and the range of sentence is between 20 to 23 years. For 750 grammes of cocaine, the starting point after trial is therefore 20 years and 9 months. There is also the aggravating feature that you have imported drugs into Hong Kong, and according to HKSAR v Chung Ping Kun CACC 85/2014, for 750 grammes of liquid cocaine, the enhancement would be 1 year 6 months, making a total of 22 years and 3 months, and both of those figures are wholly consistent with the authorities.

But in addition to what I have already said, I have heard all that Mr Grounds had said on your behalf about your efforts to bring those responsible to justice. It is no surprise that you have very little information which can lead to a direct arrest and prosecution elsewhere, but what little you had supplied may be of value, along with other information in due course, and I intend to mark that assistance with as large a discount as I am able to do.

Bearing in mind all the other circumstances that have already been advanced so ably on your behalf, Ms Tolentino, you will go to prison for a period of 12 years and 3 months.