HKSAR v. Yances Rodriguez Jean Paul

HCCC 124/2016

[2018] HKCFI 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 124 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 is a Colombian citizen. He pleaded guilty before me to one count of trafficking in a dangerous drug upon his unsuccessful application to an adjournment of the trial on the third day of the scheduled trial period. The total quantity of the dangerous drugs involved is 1,509 grams of a solid containing 904.6 grams of cocaine. The estimated street value of the cocaine amounts to just over HK$1.88 million.

On 16 May 2015, the defendant was intercepted by Custom Officers at Hong Kong International Airport after arrival on a flight inbound from Singapore. His journey had originated in Bogota, Colombia, and via Sao Paulo, Brazil. Upon search of his suitcase and three smaller bags in it, the relevant cocaine was found. The defendant now admits that he knowingly imported the drugs into Hong Kong.

The defendant is 27 years old. He is single. He worked as an administrator in Colombia earning US$600 per month. Mr Whitehouse, counsel representing the defendant, also told me that the defendant was running a clothing business. He has no criminal record in Hong Kong or in Colombia. In mitigation, Mr Whitehouse said the defendant was initially induced to come to Hong Kong to explore business opportunities, the defendant is just a courier and this is the first time of his travelling outside Colombia.

Mr Whitehouse acknowledged that there is sentencing guideline laid down by the Court of Appeal but he said that the sentencing is unduly heavy and asked me to impose the lowest possible sentence within the guideline. He submitted that the guideline is not a straitjacket and he said the circumstances of this case justified a lower sentence. He referred me to the case of HKSAR v Pacaya Abel, where Zervos J made no enhancement for international element.

Mr Whitehouse noted the relatively late guilty plea of the defendant but submitted that the defendant had actually never pleaded not guilty before the court. He asked this court to give the defendant a full one-third discount for his guilty plea.

Mr Whitehouse submitted a letter written from Father Wotherspoon, saying that the defendant and his family has supported his anti-drug campaign. Father Wotherspoon is renowned for running a campaign in Hong Kong to try to stop drug-traffickers from using people in Africa and South America to traffic drugs into Hong Kong.

The campaign mainly consists of letters from inmates in Hong Kong which the father has put on his website and referred to media and blogs in other countries with a view to expose to people in those places the serious consequence they might face in being used to traffic dangerous drugs to Hong Kong. The Court of Appeal and also fellow judges in the Court of First Instance have commended Father Wotherspoon of his work in their judgments. According to Father Wotherspoon, the defendant and his family have been supporting his campaign.

Trafficking in dangerous drugs is a very serious offence. People who commit this offence in Hong Kong will inevitably face a long term of imprisonment. The length of the imprisonment depends mainly on the quantity of dangerous drugs he has trafficked.

In sentencing traffickers in cases involving a large quantity of cocaine this court is to follow the tariff laid down by the Court of Appeal in HKSAR v Abdallah [2009] 2 HKC 197. For trafficking in a quantity between 600 grams and 1,200 grams of cocaine a starting point of 20 to 23 years’ imprisonment should be adopted. In the present case, the quantity of cocaine involved is 904.6 grams. In my judgment, the appropriate starting point should be 21 years’ imprisonment.

In the present case, the defendant imported the cocaine to Hong Kong. This is an aggravating factor and the sentence should be enhanced. There have been a large number of cases recently involving drug couriers used by drug-traffickers to import drugs into Hong Kong who are, apparently, normal citizens in South America and Africa. For these kinds of cases the Court of First Instance has been consistently following the guideline of the Court of Appeal to enhance the sentence for international element.

In this particular case I do not see any reason why I should not follow the guideline. On this factor I have considered the broad guideline in HKSAR v Chung Ping Kun and enhance the sentence by 1½ years. The heavy sentence imposed for trafficking in dangerous drugs is for general deterrence. Usual mitigations, like clear record and family situation, are not valid mitigating factors.

I agree with Mr Whitehouse that the sentencing guideline is harsh but it is harsh with a reason. The fact that there is a proliferation of similar cases is itself a factor justifying the harsh guideline. As submitted by Mr Whitehouse there are other jurisdictions having an even harsher sentence for drug trafficking offence, including death penalty. I also agree with Mr Whitehouse that hard-core traffickers should be sentenced heavier than mere couriers, but being a mastermind or a senior trafficker is, itself, an aggravating factor where sentence can be enhanced.

In this case, there is in fact no valid mitigating factor apart from the defendant’s guilty plea. Having said that, however, I would reduce his sentence by 6 months because of his and his family’s assistance to Father Wotherspoon in his anti-drug campaign. The appropriate sentence is, therefore, if convicted after trial, 22 years’ imprisonment.

The only remaining consideration now is the discounts to be given for the defendant’s guilty plea. The plea of guilty by the defendant is by no means timely. This case was listed for trial as early as on 20 April 2016, and due to the defendant’s application for an adjournment to gather evidence, the trial date was re-fixed in July last year to the present trial date. On the first day of this trial the defendant applied for an adjournment for the same reason. It was only after I refused the adjournment application that the defendant indicated his plea of guilty.

The time of the first listing of this case for trial was before the Court of Appeal case Ngo Van Nam where the guideline for giving discounts for guilty plea has been revised. The second listing in this case for trial was after that case. I have invited counsel to give me assistance on this point but, with respect, I have not been given sufficient assistance.

In reading the relevant case again, I found out that paragraph 236 of the judgment is of assistance where the Court of Appeal said:

“The revised practice of affording discounts of sentence for plea of guilty is to be applied only to those who, in future, reach the stages in criminal proceedings identified in this judgment as that at which revised discounts of sentence for pleas of guilty are identified. So for example, the revised practice applies to a defendant currently in the magistracy who in the future is committed to the Court of First Instance for trial. On the other hand, for example, a defendant in respect of whom trial dates have been fixed in the Court of First Instance who pleads guilty on the first day of his trial is to benefit from the existing practice of affording a discount of one-third from that taken as a starting point for sentence”.

In giving benefit to the defendant, I will interpret the Court of Appeal in saying trial dates have been fixed to mean the first listing. In that case I will give the full one-third discount to the defendant’s plea instead of the current practice of giving only one-fifth discount for a guilty plea on the first day of trial.

The sentence is therefore reduced to 14 years and 8 months’ imprisonment.