HKSAR v. Pereira Clemente Marcelo

HCCC 4/2018

[2018] HKCFI 2163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 4 OF 2018

-----------------

-----------------

---------------------------------------------

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

---------------------------------------------

COURT:

Mr Pereira, on 2 January 2018, 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 you accepted that you arrived at Hong Kong International Airport on 21 April 2017 with 1,021.80 grammes of cocaine, having travelled to Hong Kong from Sao Paulo, Brazil, via Addis Ababa.

That cocaine was professionally secreted in hidden compartments within the handles of the luggage which you had checked in. A total of 22 packets were found secreted within the two bags. Originally, you claimed that you did not know what the cocaine was and that a friend had asked you to bring the bags to Hong Kong. You also said that you were in Hong Kong as a visitor and had no intention of giving the luggage to anyone in Hong Kong. Nevertheless, at that stage, you agreed to take part in a controlled delivery, insofar as you were required to exit the airport in the normal way, but as no one approached you, that controlled delivery was unsuccessful.

That is not a surprise, Mr Pereira, because you later said you were to deliver the bags to someone two days after arrival. You cannot, therefore, receive any credit for participating in a controlled delivery, which you knew would never be fruitful. However, I have taken into account elsewhere, your cooperative attitude to the suggestion made by Customs and Excise.

The street value of the cocaine, at the time of your arrest, was $1,103,394, but I accept that you had no idea how much cocaine you were carrying, nor its value.

I have heard all that Ms Moosdeen has said on your behalf, and I have read the documents which have been submitted and which provide an insight into your personal circumstances at the time of your arrest. I understand you are a graduate and that you had re‑qualified to be an occupational therapist. You therefore had a modest income and as you were the sole breadwinner, it must have been difficult to make ends meet. I have been told that your father is bed ridden and requires 24 hour care. I understand that he is seriously ill and that his condition has deteriorated since you have been detained. That must be very difficult for the both of you.

I have been told that you were his care giver, as your mother had passed away, and your sister gave birth to a child with special needs. You have told the court that you come from a poor background and that you needed money to obtain medication and medical assistance. The economic conditions in Brazil at the time were very difficult, as the country was in recession. I accept that your situation must have been very difficult indeed.

You received US$700, which amounts to approximately, on current conversion rates, 2,800 reals, immediately upon agreeing to carry out this crime, and you were to receive a further US$4,000, that is 16,000 reals, upon return to Brazil, although of course, you have never received that.

You also said that someone gave you money to buy clothes, but you used it pay your debts. You did not say whether those were personal debts or debts arising from your father’s infirmity, but I imagine it was the latter. This was a great deal of money and the urge to succumb must have been overwhelming. In any event, you were put in touch with a trafficking ring by a friend, and you knowingly undertook to traffic in dangerous drugs.

The Honourable Zervos J, as he then was, in HKSAR v Pacaya Tapullima Jose Abel, HCCC 210/2014 or page 210 of 2014, found it necessary previously, to comment upon the growing prevalence of international drug smuggling from Latin America and the fact that little information is placed before the court in respect of the individual background of the perpetrator whom the court has to sentence.

As the judge said, in Pacaya, whether the defendant is a member of a cartel or a simple drug mule, is often not known, and our sentencing regime does not, on the face of it, differentiate in respect of the calculation of a starting point. Indeed, as the judge pointed out, there is little leeway in variation in sentencing, save in exceptional circumstances, and there is good reason for that, as those who fall to be sentenced should have an expectation that they will be dealt with in exactly the same way, no matter which judge they come before.

On the other hand, it may be that the court should consider the reality of the situation for those in countries far from our own, and with local situations far adverse to ours. The young or the vulnerable drug mule, as you are, who has been approached when in truly difficult personal and familial circumstances, may be in a different position than the opportunist drug carrier or someone who is more mature, financially independent and worldly wise and who can be said to truly understand the risk which they have embarked upon and the harm which they cause by so doing.

It will very much depend, in my view, upon the circumstances of the case, and counsel should not be precluded from putting their very best case forward on behalf of their client. Too often, counsel appear to believe that no mitigation upon personal circumstances will reduce the sentencing outcome and therefore, do not address the characteristics of the defendant at all. That cannot be right. Counsel should endeavour to assist the sentencing judge in understanding the nature and motivations of those which they must sentence. That is what Ms Moosdeen has sought to do here and it has been helpful to the court.

In respect of the programme operated by Father Wotherspoon, I have also had the benefit of considering the Reasons for Sentence of Mrs Barnes J, in the case of HKSAR v Rodas Suarez Carlos Herman, HCCC 447/2016, referring to the decision of the Court of Appeal in HKSAR v Odira Sharon Lensa, CACC 56/2016. I am well acquainted with the work of Father Wotherspoon and his team. It is commendable. As was said by Mrs Barnes J:

“Measures such as his that inform and discourage those in third world countries, who are vulnerable to exploitation by the international drug trafficking syndicates, are of great benefit to Hong Kong. Those that participate in such measures are likewise acting in the interests and for the benefit of Hong Kong.”

Mrs Barnes J felt the need, under HKSAR v Odira, to hear Father Wotherspoon on the issue. I do not believe that is necessary in this case. Whilst statistics are sparse and not easily available, I take the view that anything which dissuades others from bringing dangerous drugs into Hong Kong is a good thing, not only for Hong Kong, but for those open to persuasion, and I accept that the programme is showing significant signs of success. You and your family, have given it your support, and I am sure you will continue to do so, regardless of the outcome of this hearing, and I have taken it into consideration.

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. I consider the appropriate starting point, after trial, on a mathematical basis, is one of 22 years, but there is also the aggravating feature that you have imported drugs into Hong Kong. According to the Court of Appeal in Abdallah, for amounts over 1 kilogramme, the enhancement should not be less than 2 years. I will enhance that sentence by 2 years to 24 years. That figure has been arrived at, strictly in accordance with the guidelines.

However, the Court’s Appeal has, on numerous occasions reminded us that sentencing is on a case‑by‑case basis, and that the sentencing judge has a degree of discretion in arriving at their final sentence, having heard all that has been said on the defendant’s behalf. I intend to reduce the starting point by 1 year for the work done with Father Wotherspoon, which is greater than the usual reduction, and should not be seen as an opportunity to suggest that this should be any kind of guideline. I do so, looking at the totality of sentence and on the basis of the substantial starting point in this case and the significance of the support given. A reduction as large as this would not normally be given by this court. Taking into account all that has been said on your behalf, including your positive good character and personal background, which has not been gainsaid, your extreme vulnerability at the time of the offending and the clear remorse which you have shown, I am prepared, in my discretion and exceptionally, to reduce that starting point by a further 3 years. That makes a sentence of 20 years. I do so because of your dire personal situation, which in my view, does found a basis for mitigation of sentence, even for a crime as serious as this.

For those other matters, which have been advanced before me on another occasion, I am prepared to discount your sentence by more than the full one-third discount for your plea at the earliest opportunity.

And Mr Pereira, you will go to prison for 12 years.