HKSAR v. Gallo Jaramillo Rubiela Maria

HCCC 218/2019

[2019] HKCFI 2978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 218 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: Ms Gallo, on 24 June, you pleaded guilty before the Eastern Magistracy to two counts of trafficking in dangerous drugs contrary to sections 4(l)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you have confirmed that plea today. The Summary of Facts relied upon today for the purpose of sentencing has been read out and you have agreed them.

In essence, you were arrested on 20 September 2018 coming out of the Royal View Hotel, which was situated at 353 Castle Peak Road. At that time, you had upon you two separate plastic bags within your handbag, one with 696 grammes of a solid containing 509 grammes of cocaine and one with a smaller amount of cocaine found to be just 35.7 grammes. You also had $5,280 in cash in your wallet and a further $237,000 in cash in a paper bag along with five mobile phones. The 544.7 grammes of cocaine form the basis of Count 1.

After arrest and caution, at that time you were taken to the hotel room for which you had a key, and within that room, the police found a suitcase. That suitcase contained a further 329 grammes of cocaine and an electronic scale, as well as a further HK$315,144, plus some other items.

In interview, you accepted that what you were doing was illegal. You said you had only brought US$10,000 with you from Colombia and from that I assume that the whole of the moneys recovered, the large amount of money, the $237,000 and the $315,000-odd, were moneys from the profit you made from your crime.

I also infer that as you were a hawker in Colombia, that the US$10,000 you brought with you was also the profit of a crime. It was clearly a profitable enterprise as you were living in a hotel suite for some three months, according to you, which reflects the fact that you accept that you entered Hong Kong on 18 June 2018. The rental for that hotel suite was $26,900 per month, although, you say that someone else paid that. But even so, it reflects the profitability of the criminal enterprise that you entered upon.

The estimated street value of the drugs that were found upon you was at least, and I am using the lowest figure HK$1,271,320.

You are now 49 years of age and a Colombian national. I note you have no criminal record here, nor one in Colombia. But by reason of your plea, you accept that you knew full well what you were doing and you knew the risk you were taking, and you made that plain by what you said upon arrest. I have heard what Ms Crebbin has said by way of an explanation for your offending and I am sure that life was very difficult in Colombia and I am sure that your first thought was for your family. But if everyone put themselves and their family first, there would be no rule of law.

You say there is no connection between yourself and Colombia insofar as your offending is concerned, but your reluctance to assist the police upon arrest and your reluctance to assist the police now indicates that that is not the case.

I have read the letters you have provided from your family and the one that you have written yourself, but you cannot be treated any differently from others who come before the courts, otherwise, they can properly say they have been treated unfairly. There has to be a parity of sentence and only the most exceptional circumstances will provide any mitigation for the international trafficking in drugs.

The guideline case for trafficking in between 400 and 600 grammes of cocaine under Count 1 is HKSAR v Abdallah [2009] 2 HKLRD 437, and the range of sentence is, as Ms Crebbin has already said, 15 to 20 years. So for 544.7 grammes of cocaine the starting point after a trial is, therefore, 18 years and 9 months. The range of sentencing under Count 2 for between 200 and 400 grammes of cocaine is between 12 and 15 years and, therefore, the appropriate starting point for sentence after trial would be 14 years’ imprisonment. If I put those two together, that would make 32 years and 9 months’ imprisonment and that does not reflect the criminality of your offending.

These drugs were recovered on the same day. They were clearly part and parcel of the same activity and source. The total amount of drugs recovered was 873 grammes and Ms Crebbin asked that they be treated as one set of offending and I agree with that. So for between 600 and 1,200 grammes of cocaine under Abdallah, the range of sentencing is between 20 and 23 years and, therefore, the appropriate starting point after trial would be 21 years, 4 months and 2 weeks.

Whilst I have mentioned the international element to your offending, which I infer from all the circumstances, I accept from Ms Crebbin there is no direct evidence of that, and simply because there is no direct evidence and because of the totality of this sentence, I am not going to add any more to your sentence as an aggravating factor.

You will, of course, receive a one-third discount for your plea.

On Count 1, you will go to prison for 12 years and 6 months. On Count 2, you will go to prison for 9 years and 4 months. 1 year and 9 months of which will be served consecutively such that the total sentence on Count 1 and Count 2, which you will serve, is 14 years 3 months.