HKSAR v. Marin Marin Carlos Alberto and Another

HCCC 366/2018 & HCCC 85/2019

(Heard together)

[2019] HKCFI 1870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 366 OF 2018 AND 85 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

With no objection from the prosecution and defence counsels for the defendants, I am dealing with case numbers HCCC 366/2018 and HCCC 85/2019 together in this sentence hearing.

As a matter of background, the defendants in both cases were charged together in the magistracy. However, as a result of them pleading guilty at the committal hearing at different times, the two cases were committed for sentence to the Court of First Instance at different times and thus were given different case numbers. For the purposes, however, of sentence, counsel have agreed that their sentence hearing and sentences should be dealt with together.

The defendant in HCCC 366/2018, Marin Marin Carlos Alberto, shall be referred to as the 1st defendant in my reasons for sentence and the defendant in HCCC 85/2019, Grisales Pelaez Erik Bagner, shall be referred to as the 2nd defendant in my reasons for sentence.

The 1st defendant pleaded guilty on 19 November 2018 to a charge of trafficking in dangerous drugs before a magistrate at the Eastern Magistracy. The 2nd defendant pleaded guilty on 11 March 2019 before a magistrate at Eastern Magistracy to an offence of conspiracy to traffic in dangerous drugs. As a result of their pleas of guilty, both defendants were committed to the Court of First Instance for sentence. The commission of the offences by both defendants are connected with each other as principally the drugs seized were the same drugs in the conspiracy and in the trafficking offence.

As regards the 1st defendant, he has admitted to trafficking on 25 November 2017 at the Customs Arrival Hall B, Passenger Terminal Building at the Hong Kong International Airport in that he unlawfully trafficked in 1.43 kilogrammes of a solid containing 1.07 kilogrammes of cocaine.

In respect of the 2nd defendant, he has admitted that between a day on or about 25 October 2017 and 26 November 2017, both dates inclusive, in Hong Kong, he conspired together with Mellizo Contreras alias “Cou Mello” to unlawfully traffic in a dangerous drug, namely, cocaine.

At about 3.13 pm on 25 November 2017, the 1st defendant, a Colombian male, was intercepted at the green channel, that is the “Nothing to declare zone”, of the Customs Arrival Hall B at the Hong Kong International Airport. He arrived from Rio de Janeiro, Brazil via Dubai. At the time, he was pulling a black suitcase and carrying a shoulder bag. The suitcase was examined and found concealed at the back of the suitcase inside a packet were the drugs, the subject of the trafficking charge, that is the 1.43 kilogrammes of a solid containing 1.07 kilogrammes of cocaine.

The 1st defendant was arrested and cautioned in English and he remained silent. A preliminary inquiry was conducted with the 1st defendant in Spanish where he revealed he would be staying at Ibis Hong Kong North Point Hotel and it was there he was to hand over the subject suitcase. With the assistance of D1, a controlled delivery operation was mounted on the same day, however, it was not until the following morning, 26 November 2017, that the 2nd defendant went to the hotel and met the 1st defendant.

The 1st and 2nd defendant, with the 1st defendant holding the suitcase, walked towards a nearby taxi to board it and that is where the 2nd defendant was then intercepted and arrested in English. The 2nd defendant’s mobile phones were examined and it was found that he had communicated with a person called Cou Mello and it was Cou Mello who had directed that he go to the hotel and meet the 1st defendant. A photo of the 1st defendant was taken and sent to Cou Mello to identify that the 1st defendant was the person that he was looking for.

The 1st defendant and the 2nd defendant did not know each other and both have admitted that they have committed their respective offences. The value of the cocaine seized was in the sum of $1,314,170. At the time of arrest, the 1st defendant was in possession of US$1,920 and a mobile phone and the 2nd defendant was in possession of HK$11,774 and three mobile phones.

As far as the 1st defendant’s mitigation is concerned, Mr Duncan Percy mitigated fully and thoroughly on his behalf. He is a Colombian national of clear record and he is 54 years of age. His mother is 90 and his wife is 44, and he has a daughter aged 11 and a son aged 8.

The reason for committing this offence was because of the mounting hospital bills incurred as a result of his daughter’s poor health as she had a kidney problem shortly before the defendant came to Hong Kong, and in view of his small wages of about $1,400 in Hong Kong dollars, he borrowed some 80 to 90 thousand Hong Kong dollars from loan sharks. He was tempted by the lucrative reward of US$5,000 upon his successful delivery of these drugs to Hong Kong. If he had been paid that sum, it would have cleared two-thirds of his debt to the loan sharks.

The defendant has said that he was introduced to trafficking in these dangerous drugs by a man called Rincon. He has given a non-prejudicial statement (NPS) giving Rincon’s name as Lineros Loco or Luis Alberto Grisales. This NPS however, as mentioned by Mr Percy, has not assisted the prosecution, and the US authorities nor the Immigration Department, the said the information he has given in the NPS is not useful. If this information later is useful or is fruitful, as Mr Percy has indicated, the defendant can appeal out of time.

As regards the name of Rincon surname, Grisales, as can be seen, that is the same surname as the 2nd defendant’s surname. Mr Percy has indicated that although the 1st defendant has said Ricon is the uncle of the 2nd defendant, this is just a speculation; there is no evidence that this is the uncle of the 2nd defendant.

As regards the 1st defendant, he has written a letter to the court expressing his clear remorse at committing this offence. The 1st defendant has also assisted in Father Wotherspoon’s anti-dangerous drug campaign. Mr Percy has informed this court together with confirmation from Miss Chan that the 1st defendant was reluctant to give evidence against the 2nd defendant if he had been called upon to do so.

I turn to the mitigation of the 2nd defendant. Mr Kamlesh Sadhwani has given the court full written submissions on behalf of the 2nd defendant. The defendant is 26 years of age. He was born in Colombia but moved to Spain in 2000 for a better life. He has a clear record in Spain and in Hong Kong. His father worked as a painter in Spain and his mother is a housewife aged 65. The defendant is single and has a sister and a nephew. He stands or acts as the father of his nephew. His parents are separated and his father does not support the family financially. The mother suffers from various health problems. She receives no pension from the Spanish Government and is unable to work. The defendant has assumed financial responsibility for his mother. He has completed secondary school in Spain and in 2013 he started to travel to Asia to buy, inter alia, clothes, telephones and telephone accessories which he would sell in Spain and Latin America. However, in late 2016 and 17, there was a downturn in his business and this was a disaster for the defendant as his mother’s medical bills were mounting. Although trying other means of making money in Spain, this was unsuccessful. Due to the desperation, he says, to save his mother’s life, he made a mistake that led him to commit this present offence.

Mr Sadhwani submits that the defendant is lawfully in Hong Kong, he is not a Form 8 claimant. He was just a mule and not a mastermind or senior player and he did not bring the cocaine into Hong Kong and in fact did not know that the cocaine was brought into Hong Kong.

The defendant and his family have written letters to the court to which I have taken into account of. They speak highly of the defendant being a filial son, a hard-working man who financially supports his mother. As a result of his present incarceration, that burden has now passed to his sister. The defendant’s letter shows his remorse and shame and says he has made a grave mistake.

So far as the drugs are concerned, both Mr Percy and Mr Sadhwani have referred to the case of Abdallah.

I accept, in respect of the 1st defendant, that apart from his plea of guilty, he should be awarded a further discount for his participation in the controlled delivery. As a result of his participation, the 2nd defendant was arrested, charged and has now pleaded guilty. I also accept that a further discount should be awarded to him as a result of his participation in Father John Wotherspoon’s anti-drug campaign.

As for the 2nd defendant, the strongest mitigating factor is his early plea of guilty and for this he should be awarded the full one-third discount.

I have heard in detail both defendants’ personal circumstances and the difficulties that they faced, particularly in regard to finances and the support of their family and the reasons why they have committed this very serious offence. However, these are not mitigating factors which would entitle the defendants to any further discount because of the seriousness of the offence.

Defendants, I shall now turn to your sentence.

Turning to the 1st defendant, you were trafficking in 1,070 grammes of cocaine. The leading case for trafficking in those large amounts is that of Abdallah. The brackets for trafficking in drugs between 600 and 1,200 grammes had you been convicted after trial would have been between 20 and 23 years. Had you been convicted after trial, I would have taken a starting point of 22 years and 3 months’ imprisonment.

You had imported these drugs into Hong Kong and that is an aggravating factor and calls for an enhancement of that starting point. In those circumstances, I shall enhance the starting point by 2 years and therefore the sentencing point, had you been convicted after trial, would be 24 years and 3 months’ imprisonment.

As I mentioned, you had participated in a controlled delivery, successful controlled delivery, and giving you a full discount for your plea of guilty and including your controlled delivery, I discount those together by 40 per cent from the sentencing point and give you a further discount of 3 months for your participation in Father Wotherspoon’s campaign.

In the circumstances, you shall be sentenced to 14 years and 4 months’ imprisonment.

As for the 2nd defendant, the quantity that you had conspired to traffic in is exactly the same as that of the 1st defendant, that is 1,070 grammes of cocaine. I shall take the same starting point, that is 22 years and 3 months’ imprisonment. The strongest mitigating and only mitigating factor is your early plea of guilty, and therefore you should be given the full one-third discount, and you shall be sentenced to 14 years and 10 months’ imprisonment.

In respect of D1, can I just say that the 40 per cent discount would be 14 years and 7 months, and then with the discount of 3 months, that means 14 years and 4 months, just to make that clear.