HKSAR v. Gutierrez Arango Gustavo Alejandro

HCCC 430/2017

[2018] HKCFI 2724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 430 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, you pleaded guilty before a magistrate at the Eastern Magistracy on 20 November 2017 to a charge of trafficking in dangerous drugs. On that same date, a Summary of Facts was read to you and you admitted those facts to be correct. As a result of your plea of guilty, you were committed to the Court of First Instance for sentence.

You first appeared at the Court of First Instance for sentence on 28 February 2018. The sentencing hearing was adjourned to deal with matters raised by you in respect of Father John Wotherspoon and the contribution you had made to his campaign.

Since that date, the hearing for sentence has been adjourned until today awaiting the decision of the Court of Appeal on the discount to be given in respect to assistance to Father John Wotherspoon’s campaign. I shall deal with that in due course.

Defendant, on 20 February 2017, you arrived in Hong Kong at the Hong Kong International Airport from Paris having originated your journey from Bogota, Colombia. You were intercepted for customs clearance and suspecting you had drugs concealed in your body, you were sent to the North Lantau Hospital for medical examination. The medical examination revealed that foreign objects were concealed inside your body.

Between 20 to 28 February 2017, you excreted a total of eight packets containing 414 grammes of viscous liquid containing 237 grammes of cocaine, which is the amount of drugs you have pleaded guilty to trafficking in.

The estimate street value of the drugs seized was $341,550.

At the time of your arrest, you had cash of US$960 and a small amount of Colombian pesos and euros worth less than HK$90. You also had on you a booking printout for a hotel in Wan Chai and a piece of paper with the name of a Sheung Wan hotel written on it. Staff from both hotels confirmed that you did not have a valid booking at those hotels.

Mr Percy, your counsel, has mitigated fully and thoroughly on your behalf before me today. I have had before me two affirmations from yourself and Father Wotherspoon. I have had a handwritten letter from you expressing your remorse. I have also had before me a document from Colombia saying that you have a clear record in Colombia.

Defendant, you are 46 years of age and were previously a truck driver in Colombia earning US$200 a month. You have two daughters, aged 19 and 21. When you were offered a reward of US$5,000 to bring these drugs to Hong Kong, you thought that the amount was beyond your dreams, as Mr Percy has said, and that you could provide your daughters with university education. Therefore, you swallowed these drugs and were prepared to take the risk of bringing them to Hong Kong.

Mr Percy informed me that you were instructed to deliver these drugs to a Colombian man named El Loco, Mr Prezi, who was supposed to meet you at the hotel once you got through the green channel.

Your strongest mitigating factor, defendant, is, of course, your very early plea of guilty at the committal proceedings. For that, you, of course, will be awarded the one-third discount.

As mentioned, the sentence was adjourned until today awaiting the Court of Appeal decision and that was the decision of HKSAR v Kilima Abubakar Abbas, CACC 143/2016, where the court comprised of Lunn VP, Macrae VP and McWalters JA. Mr Percy has taken me through to the salient parts of the judgment dealing with what discount should be given for participation in Father Wotherspoon’s campaign.

In that judgment Lunn and Macrae VP’s said that the discount that may be awarded in participation of the campaign should be up to 3 months’ imprisonment. McWalters JA, differs and says that the minimum discount should be one of 6 months, which could be increased up to 1 year, and that is a dissenting decision.

I accept that you have participated actively in the campaign with Father Wotherspoon. The affidavit shows that you have written three letters which have been posted on Father Wotherspoon’s website in South America. Your family members have become involved in the campaign. They have managed to recruit 99 others in the campaign to help spread the word not to become involved as drug mules to Hong Kong. And I accept through your participation in this campaign you had, in fact, done so even before knowing you could obtain a discount for your participation. In those circumstances, Defendant, I would award you a three-month discount.

Defendant, you had trafficked in 237 grammes of cocaine to which you imported into Hong Kong from Colombia. In following the tariffs laid down in Lau Tak Ming for trafficking in that quantity of cocaine, had you been convicted after trial, an appropriate sentence would have been one of 12 years and 6 months’ imprisonment. As you had imported the drugs into Hong Kong, that is an international element and I would enhance that starting point by 6 months’ imprisonment as that is an aggravating factor. The sentencing point, therefore, had you been convicted after trial, would be one of 13 years’ imprisonment.

You have pleaded guilty at the very first opportunity and, therefore, you should be awarded the one-third discount and that will reduce the sentence to one of 8 years and 8 months’ imprisonment. I give you a further discount of 3 months for your participation in Father Wotherspoon’s campaign and, therefore, the resulting sentence should be one of 8 years and 5 months’ imprisonment to which you shall be so sentenced.