HKSAR v. Cabrera Cabrera Fernain

HCCC 48/2018

[2018] HKCFI 1089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 48 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant, and mitigation put forward on his behalf.

The facts of the case may be summarised as follows.

The defendant was intercepted at the SkyPier of the international airport. A packet of cocaine was found concealed inside a false compartment of his suitcase and another two packets of cocaine were concealed inside the false compartment of his backpack.

The dangerous drug the defendant was trafficking in was a total of 2,462 grammes of a powder containing 2,029 grammes of cocaine. Under caution, the defendant said he was offered a reward of US$10,000 to go to Brazil from Colombia and bring the suitcase and the backpack to Hong Kong. He said he did not know the existence of the drug, despite he has a suspicion. He was to go to Macau first for two days and wait for further instruction upon returning to Hong Kong.

The defendant is now 48 years old. He is the holder of a passport of the Republic of Colombia. He received education up to a Level 3 at a high school, and had worked as a freelance worker in a telephone company. He was living with his common-law wife; they have a son, now five years old. The defendant also has two adult sons from a previous relationship. He has no criminal record in Hong Kong and in Colombia.

Learned counsel for the defence, Mr Donald, informed the court that the defendant committed the offence since he was in heavy debt arising from family needs; the defendant was the sole breadwinner of the family. Mr Donald stressed that the defendant is not pleading duress, but the defence asked the court to take into account that the defendant was exploited in a difficult financial situation when he committed the offence.

Mr Donald said the defendant is fully remorseful and this is reflected in the letter the defendant wrote. Mr Donald also told the court that the defendant has been involving actively in the program Father John is operating. Father John has written a letter setting out what the defendant had done, and pleading leniency for the defendant.

In Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 it was held that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. Lau Tak Ming only provided a tariff for cases involving narcotic content up to 600 grammes. In HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal set out further guidelines for cases involving larger quantity. It was held that for cases involving narcotic content of 1,200 to 4,000 grammes, an imprisonment term of 23 to 26 years should be considered. Further, it was held that international element is an aggravating factor and an enhancement of no less than 2 years’ imprisonment should be considered if the amount of narcotic was above 1 kilogramme.

In all the circumstances of the present case, I do not consider there are any reasons to justify departure from the tariff. I will enhance the starting point by 2 years for the international element, and adopt 25 years and 9 months as the ultimate starting point.

The defendant pleaded guilty before a magistrate and for this reason is entitled to a one-third discount. As regards the engagement in the campaign launched by Father John, in accordance with the guidance in HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249, I have taken steps to ascertain the extent and degree of participation of the defendant in the programme. I have had regard to what is set out in Father John’s letter and the relevant Court of Appeal cases.

In HKSAR v Akinyi Grace Sylvia CACC 324/2015, the Court of Appeal recognised efforts of such nature amounts to assistance in combating drug trafficking. Even though the assistance were not rendered directly to the authorities, it was recognised that the government and the community benefited from it ultimately. In that case, the Court of Appeal did not interfere with an otherwise rightly decided sentence, and held that it would be a matter for the executive to determine whether assistance of this kind, by serving prisoners, should be rewarded by use of the executive power of clemency.

The defendant in the present case is not in exactly the same position as is not yet a serving prisoner, and the court is not considering whether to interfere with the sentence already imposed. A proper sentence should be imposed to reflect the criminality of the offence the offender had committed. The campaign of Father John should be praised, whilst the effort of the defendant should also be recognised, the situation is not the same as one where a defendant has provided valuable information in relation to a specific crime which leads to a fruitful result.

For the time being, the involvement in the programme of the defendant, in my judgment, cannot be described as particularly distinct and effective. The executive will be in the best position to assess the degree of contribution and its effectiveness if the defendant is to participate further in the campaign, and decide whether such assistance should be rewarded by use of the executive’s power of clemency.

In the meantime, as a gesture of encouragement, I am prepared to give the defendant a further discount of 2 months. Having considered the whole circumstances, including mitigation submission and the information provided by Father John, in my judgment this is the extent of discount the defendant is entitled to.

For the reasons I have mentioned, I sentence you to an imprisonment term of 17 years.