HKSAR v. Cedeno Meijas Angel Rafael

HCCC 253/2018

[2019] HKCFI 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 253 OF 2018

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

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COURT:

Defendant is a Venezuelan citizen. On 19 August 2017, he was detained at the Hong Kong International Airport after arrival on a flight in-bound from Addis Ababa of Ethiopia. His journey had originated in Sao Paulo of Brazil.

The defendant was sent to the hospital where examination revealed that there were suspicious objects inside his body. The defendant later discharged 82 packets of a substance found out to be 963 grammes of a solid containing 736 grammes of cocaine.

At the time of the arrest, the defendant had also US$800 and an equivalent of HK$97,000 of Venezuelan currency with him.

The estimated street value of the cocaine found on the defendant is approximately HK$858,033.

The defendant is now 32 years old. According to him, he is married with two sons and a daughter. He works as a construction worker earning HK$786 per month. He has no criminal record in Hong Kong and according to his certificate of good character produced by him, he also has a clear record in his home country.

In mitigation, Mr Polson, counsel for the defendant, submitted a letter written by Father Wotherspoon saying that the defendant had supported strongly his anti-drug campaign. Father Wotherspoon has contacted the defendant’s wife and mother in Venezuela and they also participated in the father’s campaign in Venezuela.

The father said there were many Venezuelan citizens arrested for trafficking of drugs into Hong Kong in the years 2016 and 2017 but there was none in 2018. This showed that his campaign, with the help of those who had been arrested and also their family members, had been very successful.

In a letter submitted to the court, the defendant said he is the main provider of his family and what he regrets most is the fact that he cannot now support his family and his children will be growing up without him. He said he committed the present offence because of the poor financial situation of his family. He is now very sorry and he is asking this court for a lenient sentence.

Mr Polson submitted that the defendant had given NPS statements to the Customs and Excise Department, giving names to the defendant of the people behind his trafficking of drugs into Hong Kong. One of the persons named by the defendant had actually been interviewed by the Customs and Excise officers at the Lai Chi Kok Reception Centre and that person refused to answer any questions concerning drug‑trafficking activities.

Although it is the view of the Customs and Excise Department that the information given by the defendant is not useful, Mr Polson submitted that the defendant had tried his best to provide assistance to the authority and for this, he ought to be given a meaningful discount.

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

For trafficking in large quantity of cocaine, this court should 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 grammes and 1,200 grammes of cocaine, a starting point of 20 to 23 years’ imprisonment should be adopted. In the present case, the quantity of cocaine involved is 736 grammes. Applying the said tariff, the appropriate starting point should therefore be 20 years and a half imprisonment.

In the present case, the defendant imported the cocaine into Hong Kong. This is an aggravating factor and the sentence should be enhanced. Following the broad guideline in HKSAR v Chun Ping Kun CACC 85/2014, 2 July 2014, the sentence should be enhanced by 1 year to 21 years and 6 months.

The heavy sentence imposed for this kind of offence is for deterrence. Usual mitigations like clear record, financial hardship and family situation are not valid mitigating factors. In this case, I will, however, reduce the defendant’s sentence by a token discount of 3 months because of his assistance given to Father Wotherspoon in his anti-drug campaign. Besides, I agree with Mr Polson that the defendant had given genuine assistance to the authority by providing names to the authority, including one who found out by the Customs and Excise Department that there is indeed such a person detained in Lai Chi Kok Reception Centre.

In the circumstances, applying the principles under Z v HKSAR [2007] 10 HKCFAR 183 and also the case HKSAR v Lo Sze Tung Stephanie [2018] HKCA 421, I will adopt a discount of around 38 per cent which includes the one-third discount because of the defendant’s guilty plea.

The sentence of the defendant is therefore 21 and a half years times 62 per cent which equals 13 years and 4 months and a further deduction of a token discount of 3 months. The defendant is therefore sentenced to 13 years and 1 month’s imprisonment.