HKSAR v. Toledo Herrera Sachy Yahaira Maciel

HCCC 13/2019

[2019] HKCFI 1494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 13 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant has pleaded guilty to an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. Defendant, you have admitted that on 9 May 2018, you unlawfully trafficked in a dangerous drug, namely 1,290 millilitres of a liquid containing 317.2 grammes of cocaine.

You were arrested as you arrived at Hong Kong International Airport from Peru via France. This plea was entered before Eastern Magistracy on 7 January 2019 and you were committed to the Court of First Instance for sentence.

Facts

The defendant arrived at Hong Kong International Airport from Lima, Peru via Paris and at about 6.29 pm, she passed through the green channel of the Customs Arrivals Hall with a backpack and a suitcase. She was directed by a Customs officer to one side to X-ray her luggage. She was then led to a baggage examination counter. She confirmed that the luggage belonged to her.

Upon search, four bottles of purported beer and one bottle of purported wine were found inside the defendant’s suitcase. The condition of a bottle raised the suspicions of a Customs officer. Therefore, a test was conducted on the liquid inside one bottle which revealed a positive result for cocaine.

The defendant was arrested and cautioned in English; she said she did not know what was inside the bottle. She further explained that they were presents that were given to her by a friend. She was meeting her Peruvian boyfriend in Hong Kong. He was flying in from Japan two days later. A friend in Peru gave her the beer and wine as gifts for her boyfriend.

The defendant told the police under caution that she had never been to Hong Kong before and would wait for her boyfriend to arrive two days later. Her boyfriend was a Peruvian man aged about 55 who was living in Japan. She met him in Japan in July 2017. She communicated with him via Skype and did not know his telephone number, his e‑mail address nor his date of birth. When she was given the bottles of alcohol, she did not think they contained anything but alcohol.

The defendant’s mobile phone was seized and examined. An interpreter was arranged to translate the text in her phone. There were WhatsApp messages. At around the time of the offence, there were several incriminating messages but when the defendant was asked about the screenshots, she replied that she did not understand the conversations.

The liquid was analysed by the government chemist and the certificate confirmed they contained 317.2 grammes of cocaine.

The estimated street value of the drugs in May 2018 was about $344,162.

Mitigation

The defendant is now a 22-year-old Peruvian national. She is single and lives with her father and her sister in Lima, Peru. Her mother, sadly, passed away about eight years ago. She is a university graduate and was working as a dentist’s assistant earning 700 to US$1,200 per month. She has never been to Hong Kong before and obviously has a clear record here.

I am told in mitigation that she now admits she was tempted by a reward of about US$1,000 to bring drugs to Hong Kong. She was hoping it would ease the financial burden of her father who works as a deep-sea fisherman. She is now remorseful and that is reflected by her plea. Her best mitigation is her plea of guilty.

Today, I have a letter from the defendant which expresses her own heartfelt remorse and apology.

Trafficking Guidelines

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of HK$5 million and to imprisonment for life. The sentencing guidelines for cocaine can be found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370. Although that authority involved heroin, the Court of Appeal has ruled that those guidelines also apply to cocaine. In that authority where between 200 to 400 grammes of narcotics are trafficked, a starting point of between 12 to 15 years would be appropriate. Mathematically speaking, 317.2 grammes of cocaine attracts a starting point of 13 years and 9 months.

In this case, the cocaine was imported from Peru into Hong Kong by the defendant. It is well established that where an international element arises from the facts of a trafficking-in-dangerous-drugs offence, then this element constitutes an aggravating factor. I have been referred to HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chung Ping Kun [2014] 6 HKC 106. In that last authority, the Court of Appeal laid down some guidelines on enhancing sentence for the international element where the quantity of dangerous drugs is under a thousand grammes. The Court of Appeal said that where there is between 250 and 500 grammes involved, then an enhancement of between 6 months to 1 year is appropriate.

Mr Tracy has said all he can say on behalf of the defendant. As I have said above, the defendant’s best mitigation is her plea of guilty. Her personal circumstances and her clear record in Hong Kong do not amount to any significant mitigation for an offence of such gravity, none that would or should attract any additional discount.

After careful consideration of the facts, mitigation, tariff guidelines and the aggravating factor of an international element, I will take a starting point of 13 years and 9 months which I enhance by 6 months to reflect the international element of importing that amount of cocaine into Hong Kong. The starting point becomes 14 years and 3 months.

The defendant is entitled to a discount of one-third for her plea at the earliest opportunity. After that discount is applied, the starting point of 14 years and 3 months, the defendant is sentenced to a term of imprisonment of 9 years and 6 months. Can I ask the defendant if she understands her sentence?

ACCUSED: Yes, sorry. That’s understood.