HKSAR v. Guache Arvelaez Liliana Josefina

HCCC 241/2018

[2019] HKCFI 1149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 241 OF 2018

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

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COURT:

Ms Guache, you pleaded guilty to one count of trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 on 6 August 2018 and you have confirmed that plea before this court so you stand formally convicted of that offence.

The statement of facts was read out to you and you accepted those facts. But in summary, you are a Venezuelan female who lived in Peru at the time of offending, having fled the poverty of your own country.

You collected the dangerous drugs in Sao Paolo, Brazil and attempted to enter Hong Kong at Chek Lap Kok International Airport on 7 November 2017, from Sao Paolo via Amsterdam. You were intercepted on arrival. A search of your rucksack revealed a hidden package containing 1.86 kilogrammes of cocaine.

You did not admit your part in this matter immediately. You suggested that you had come to Hong Kong to visit and to seek job opportunities and that the rucksack was not yours, but you had not realized this until the dangerous drugs were found.

You were also not full and frank with the authorities when they took your antecedents statement. I now understand that you may have had some psychiatric problems at the time and have spent a period of time receiving treatment in Siu Lam. This would account for the stories you told after arrest and also would explain your vulnerability and the likelihood that you would be susceptible to an approach by drug traffickers.

I have since been told that you were offered US$7,500 to bring these dangerous drugs into Hong Kong.

The value of the cocaine in Hong Kong at the relevant time was $2,012,610.

The reward you have mentioned far exceeds any suggested reward this court has been told about previously and if true, would have seemed too great an opportunity to refuse, especially by someone who was struggling to survive financially. At 41 years of age, you were not naïve and the WhatsApp messages clearly indicate you knew full well what you had agreed to do, although I doubt that you understood the risks and the ensuing penalty if caught.

You only had US$494 upon you on arrest and also a mobile phone which contained the WhatsApp conversations about the dangerous drugs. I have not been provided with a copy of those but I believe they were all in Spanish and that you had no connection with those operating in Hong Kong at the stage that you were arrested.

You have a clear criminal record. You are 41 years of age and have a partner and a 3 years old son who is currently being cared for by his grandmother. You have told the court that your financial situation led you to commit this offence. Like many thousands of other people, you fled the poverty and economic disaster of Venezuela and went to Peru but were an illegal immigrant which severely curtailed your ability to thrive in that country. It was in Peru that you met your partner and had a son. You worked as a part-time hairdresser and the money you received was necessarily very little.

I take into account what Mr Stevenson has said on your behalf and I was also greatly assisted by Father Wotherspoon who is able to give me a credible account of you as a person, dealing with what you have done and the sentence you are to face.

I understand fully your family’s circumstances, your financial position and the reasons you committed this offence. They have explained the remorse you feel for what you have done and all that is now being done by your family in Peru to stop others following in your footsteps.

By chance, your particular case has been highlighted to show the dangers of trafficking in dangerous drugs and I am sure it has had a significant effect. I suspect very few people who allow themselves to become drug mules realize the risk they put themselves at when they do so but you have done so now and have, through your family, made efforts to stop others doing anything so foolish. I have seen the proof of those efforts.

You are very lucky that you were not arrested in Malaysia or Singapore, but nevertheless, we have very heavy sentencing guidelines in Hong Kong and the punishment which you receive must reflect the gravity of the offence. It must also be consistent with current sentencing practice.

The courts have been dealing with the issue of the international importation of dangerous drugs for very many years and see fit to revisit this very grave offence from time to time in order to ensure its approach is commensurate with the gravity of the offending and harm to society.

The courts of Hong Kong take a very dim view of the importation of drugs and as a consequences, the guidelines set out for the assistance of the High Court, indicate that only heavy sentences will follow.

For the trafficking of 1.86 kilogrammes of cocaine in accordance with the guidelines set out in HKSAR v Abdallah [2009] 3 HKLRD 437, the guideline starting point for trafficking after trial between 1,200 and 4,000 grammes is 23 to 26 years. So the appropriate starting point for 1.86 kilogrammes of cocaine is therefore 23 years and 9 months’ imprisonment.

There is also a significant aggravating feature because you brought these drugs into this country from abroad and for that international element to this offending. I am obliged to enhance your sentence by 2 years. The starting point is therefore 25 years and 9 months.

I have taken into account all that counsel has urged upon your behalf, the fact that you have no previous record in Hong Kong, your maturity, and that you will be serving a significant sentence a long way from home and your family. But these factors alone cannot reduce the sentence I have already indicated as this is a serious crime for which a deterrent sentence is required and only the most exceptional proven personal circumstances will reduce the sentence below that guideline which I have mentioned.

Whilst I do note that you attempted to assist the authorities and were genuine in your intentions in that regard, it has unfortunately, not resulted in any quantifiable success. The fact that it has not yet borne fruit is not your fault, but as Mr Leung has pointed out and I am grateful to him for so doing, I am bound by HKSAR v Kilima Abbubakar Abbas [2018] 5 HKLRD 88 and HKSAR v Araque Escobar Brigida Maria.

In some ways, it may be said that your situation has discouraged others from following in your footsteps as I understand since the media campaign promoted by Father Wotherspoon there have been no other arrests of Venezuelan drug mules and I take all that you have tried to do and the work your family into account as well because their efforts may stop at least one person thinking they can import drugs into Hong Kong with impunity, but I am restricted to a maximum of 3 months discount from the starting point for that and any assistance which you have given which is currently unfruitful must be left to the Executive to deal with. Despite the fact that you will now find yourself unrepresented after sentencing and no one will be in a position to progress whether that assistance has come to anything or not. As I have just said, my hands are tied in this matter.

Giving you a full one-third discount for plea and taking into consideration all the other matters I have mentioned, you will go to prison for a period of 17 years.