HKSAR v. Lira De Souza Fabiola

HCCC 205/2019

[2019] HKCFI 2357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 205 OF 2019

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

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COURT:

The defendant, Lira De Souza Fabiola was charged with one count of Trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap. 134.

She pleaded guilty before a Magistrate and was committed to the Court of First Instance of the High Court for sentence.

Admitted Facts

The Admitted Facts disclosed that the defendant travelled to Hong Kong from Madrid via Doha. She was bodily searched during Customs clearance and an object with plastic wrapping was found protruding from her vagina.

The said object was a packet containing substance wrapped by a condom which was later confirmed to be 246 grammes of a solid containing 85 grammes of cocaine. The defendant was arrested and cautioned.

The defendant attended four video-recorded interviews. She explained how she came to carry this item into Hong Kong. In gist she said she travelled to Hong Kong in April and then onwards to China and Singapore and then to Madrid. She then travel from Madrid to Hong Kong via Doha. And while she was in transit in Doha, the flight was delayed and a stranger approached her asking her if she wanted to make quick money.

The defendant agreed and was told to put a package inside her vagina. She failed at first and only managed to do it after the item was put inside the condom. She was promised US$4,000 and she was instructed to pass that item to someone who would approach her in Hong Kong.

The defendant said she had planned to stay in Hong Kong after arrival on 28 June, that is 2018, until 15 or 16 July. She had not made any bookings or reservations for accommodations here.

The cocaine in question had an estimated street value of $242,310. The defendant admitted she was knowingly in possession of the dangerous drugs seized for the purpose of unlawful trafficking.

Background and Mitigation

The defendant is Brazilian, is now 42 years of age. She studied up to tertiary level but without completing the course. She used to live with her adult daughter. She was a self-employed sales person and took part in the trading business earning around US$1,000 per month, prior to her arrest. She claimed she is not a drug addict.

Mr Frederic Whitehouse, counsel for the defendant, submitted that the defendant had, in fact, given an untruthful account of her involvement to the Customs and Excise officer during the four video-recorded interviews. In fact, it was a Columbian who had given her the cocaine in Madrid. The defendant is truly remorseful and she had participated in Father John Wotherspoon’s program.

Mr Whitehouse also informed me that the defendant had given an NPS, non‑prejudice statement, to the authorities but unfortunately nothing useful comes out of it. Father Wotherspoon had written to me on behalf of the defendant, setting out what she had done to assist his anti‑drug campaign.

Father Wotherspoon also annexed the defendant’s personal letter to him for my reference. Father Wotherspoon expressed his hope that the defendant’s assistance to his campaign and the information she had provided to the authorities, amount to special mitigation so that a further discount can be given to her.

Now, as for the sentence. In mitigation, Mr Whitehouse suggested this Court to consider a starting point of 8½ years, then enhance it by 6 months to take into consideration the international element.

Mr Whitehouse frankly admitted that he did not agree with the enhancement on account of international element and he submitted a First Instance case before the Honourable Zervos J, as he then was, in a case HKSAR v Pacaya Tapullima Jose Abel. That is a High Court case HCCC210/2014. And he asked me to follow what Zervos J had done at the time, that is, not to enhance the starting point by adding the international element.

Consideration and reason for the sentence

For the offence of Trafficking in a Dangerous Drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million. The total quantity involved here is 85 grammes, which falls into the category of 50 to 200 grammes, with a starting point of 8 to 12 years. And that is the case of Pedro Nel Rojas adopting the guidelines on Lau Tak Ming.

The defendant was being used as a courier, a drug mule. After considering the circumstances of this case which is sadly, very similar to many of such cases that come before the courts, a starting point of just under 9 years would have been appropriate. I am prepared to adopt a starting point of 8½ years, as submitted by Mr Whitehouse.

There was also an international element involved, as the dangerous drug was imported by the defendant, which amounted to an aggravating factor. After considering the case of HKSAR v Chung Pin Kun [2014] 6 HKC 106, the appropriate enhancement for 85 grammes of cocaine under this heading is one of 6 months.

I appreciate Mr Whitehouse’s own personal view and what Zervos J had done in the case submitted, that is back in 2014. However, the Court of Appeal had consistently upheld sentences imposed on defendants who brought drugs into Hong Kong with the enhancement for international element. There is no basis for me to depart from the judgments of the Court of Appeal. So the enhanced starting point is now 9 years.

Discount after plea

The defendant has pleaded guilty at the earliest available opportunity and is entitled to the full one‑third discount. So with this discount, the sentence would be one of 6 years.

Participation in Father Wotherspoon’s campaign

I have to consider whether the defendant is entitled to a further discount on account of her participation in Father Wotherspoon’s campaign and also this part, the campaign.

Now, the proper approach to be taken in relation to involvement in Father Wotherspoon’s campaign is set out in the case HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88. The court said: The reduction is not automatic, nor is there a usual discount. A judge may choose not to give any discount for this factor at all, or if given, must be a “token” discount of not more than 3 months.

And in a later case, HKSAR v Rwakibale Aheebwa Peter [2018] HKCA 920. That is CACC 171/2017. The Court of Appeal confirmed this approach taken in the case of Kilima, that is, a token discount of no more than 3 months to be given for a defendant’s participation in Father Wotherspoon’s campaign.

Having considered what the defendant had done in this case to assist in Father Wotherspoon’s campaign, that is by getting her daughter to set up a Facebook page to post testimonials and press articles warning about drug mules bringing drugs to Hong Kong, and also exposing the method of concealing the drugs in one’s body rather than swallowing them, I am prepared to give the defendant a token discount of 3 months for her participation.

With the further discount of 3 months, the sentence would therefore be one of 5 years and 9 months.

Now, I will have to consider whether any further discount is to be given to the defendant for providing information to the authorities. The defendant gave a NPS to the Customs and Excise Department in May this year, some 11 months after her arrest. In the statement, the defendant gave the names of the various persons involved and mentioned that some of the particulars could be retrieved from one of her mobile phones, that is the pink one.

Ms Ko for the respondent, informed me that the defendant had indicated her willingness to provide information, through her solicitors, in March this year. An arrangement is to be made, such as confirmation from her solicitor and the provision of a Portuguese interpreter, so eventually the defendant gave the NPS in May this year. And after that the C & E, that is Customs and Excise, did retrieve names and phone numbers from the defendant’s pink mobile phone and the information had been forwarded to the relevant authorities overseas.

And as of yesterday, the C & E had not been informed that the information provided by the defendant had yielded any results. For those who allegedly live in Hong Kong, Ms Ko informed me that due to the limited information, nothing useful comes out of the information. Nothing useful. And C & E officers also did a stakeout at the Mirador Mansion, but again, nothing useful came out of that.

Steps have been taken to obtain the subscriber’s information from the service providers of the telephone numbers retrieved from the defendant’s mobile phone, but such subscriber information is not yet available.

I would add here that although there was some suggestion that a photograph of one of the persons involved was made available to C & E, Ms Ko informed me that the defendant did not mention any photograph of any person involved to the C & E officer who took the statement. And I can see from the NPS statement that there was nothing about any photograph of those allegedly involved being available.

I understand from the defence that they do not wish to have a Newton hearing held in order to resolve this issue.

Now, in the case of HKSAR v Dewi Ilmayanti and Another, that is CACC 370/2015 or [2019] HKCA 794, the Court of Appeal said at paragraph 74:

“Assistance to authorities entitles a defendant to an additional discount beyond the one-third for the plea of guilty. Where that assistance is only the provision of information that is of practical use but does not result in successful law enforcement action the appropriate discount will usually be in the range of 33.3 per cent to 40 per cent.”

The key words here, in my view, are “of practical use”.

I bear in mind that the arrest was made in June last year. No doubt those involved behind the scene would have learned of the defendant’s arrest. One would expect, in the normal course of event, for those people to change their names and/or address to avoid detection. Information provided to the C & E in May this year, almost 11 months after the arrest and in the absence of any evidence to the contrary, appears to be stale and not of any practical use and I will not give the defendant any further discount under this heading.

Should the subscriber information to be obtained by C & E turn out to be of use, no doubt the defendant will be informed and she could then ask either the Court of Appeal or the Executive, to consider giving her a further discount.

So for the offence of Trafficking in a dangerous drug, the defendant is sentenced to 5 years and 9 months’ imprisonment.