HKSAR v. Lino Dos Santos, Roosewelt

HCCC 120/2018

[2019] HKCFI 139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 120 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Mr Lino Dos Santos, on 9 April of 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 accepted that you arrived at Hong Kong International Airport on 12 July of 2017 with 1,173.3 grammes of cocaine, having travelled to Hong Kong from Rio de Janeiro, Brazil via Dubai.

That cocaine was professionally secreted in hidden compartments within the framework of the luggage which you had checked in. A total of 46 packets were found secreted within the two bags. Originally, you said that you were in Hong Kong as a visitor and had no intention of giving the luggage to anyone in Hong Kong. In interview, you told Customs and Excise that you worked as a lorry driver in Brazil but that the money you made could not support you. Nevertheless, you suggested that the US$870 was your own and not given to you by the traffickers who persuaded you to import dangerous drugs into Hong Kong for 20,000 Brazilian real. Mr Grounds tells the court that the US$870 represented about 3,000 real, and therefore I can see that 20,000 real would indeed have been a considerable amount of money to you.

The street value of the cocaine at the time of your arrest was $1,425,651.20, but I accept that you had no idea how much cocaine you were carrying nor its value. You did not commit this crime for that reason. You were not to profit from the drugs you imported into Hong Kong in any other way than the reward you were to receive, and of course you have not received that.

I have heard all that Mr Grounds has said so eloquently 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 married man with a wife and six children, one of whom you have supported even though that child is not your own. The age range of those children is 12 to 25 years but a number of them would still need your wife to look after them and you to provide for them.

I understand that your financial situation in Brazil was very difficult, and despite holding down a job as a lorry driver, you earned the modest sum of 1,600 real a month. Even with the cost of living in Brazil being much less than Hong Kong, I am sure that it must have been very hard to manage on that salary with a large family. I also note that you are a man in his 40s and of good character, which is to your credit. This offending means that you will bear the responsibility and the shame of leaving your family to fend for themselves for very many years ahead. The sentence which I must pass upon you will mean that you may very well have difficulty finding employment when you finally return to Brazil.

Zervos J, as he then was, in HKSAR v Pacaya Tapullima Jose Abel, HCCC 210 of 2014 found it necessary 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 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 of 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. The difference in sentencing as between judges of this court is often a ground of appeal.

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

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

“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.”

I commend that approach. 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. This defendant has given it his support, and I am sure he will continue to do so regardless of the outcome of this hearing, and I have taken that 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 and 9 months 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 and 9 months. That figure has been arrived at strictly in accordance with the guidelines. However, the Court of 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.

In this case, I intend to reduce that starting point by 9 months for the work done with Father Wotherspoon which is greater than the usual reduction, 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.

Taking into account all that has been said on your behalf, including your good character and personal background, your difficulties at the time of the offending and your clear remorse which you have shown, I am prepared, in my discretion, to reduce that starting point further by 1 year. That makes a sentence of 23 years. I do so because of your difficult personal situation which, in my view, does found a basis for mitigation of sentence even for a crime as serious as this. In so doing, I note that you would have wished to assist further but have not done so out of a genuine fear of reprisal for your family in Brazil who are without protection from those who seek to traffic in dangerous drugs on a commercial scale.

You will of course receive the full one-third discount for your plea at the earliest opportunity, and you will go to prison for 15 years and 4 months or 184 months if you want the figure in months.