HKSAR v. Campos Cuellar Marcos Rodolfo

HCCC 241/2019

[2019] HKCFI 3154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 241 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, Mr Campos Cuellar Marcos Rodolfo, pleaded guilty to one count of trafficking in a dangerous drug during the committal proceedings. The offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The particulars of the offence are that the defendant, on the 18th day of October 2018, at Hong Kong International Airport, Chek Lap Kok, Lantau Island, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 665.5 grammes of a solid containing 571.3 grammes of cocaine.

He is committed to this court for sentence.

Facts Admitted

On 18 October 2018, the defendant arrived at Hong Kong International Airport from Sao Paulo, Brazil, via Dubai in transit to Siem Reap of Cambodia. In his check-in suitcase which was retrieved for examination, the Customs and Excise officers found white powder in a hole in the metal frame of the suitcase. The defendant gave no response when asked what the powder was. In a false compartment of the suitcase, Customs and Excise officers found a total of 665.5 grammes of a solid containing 571.3 grammes of cocaine. The defendant was arrested.

With the help of a Spanish interpreter, the defendant admitted taking the dangerous drug to Hong Kong for a reward of US$5,000. US$500 and some other foreign currencies were found on the person of the defendant.

In a video-recorded interview subsequently conducted, he admitted that he was a taxi driver earning US$300 a month. He owed a bank loan of US$2,000 with monthly repayment of US$270. He agreed to take the suitcase to Siem Reap, Cambodia because he needed money. After obtaining the suitcase in Bolivia, he flew to Hong Kong via Sao Paulo and Dubai. Air tickets and hotels were booked for him and he was supposed to be met by someone at a hotel in Cambodia and the person would take possession of the suitcase.

The money found on his person was travelling expenses given to him when he received the suitcase. He was to return to Sao Paulo via Hong Kong and Dubai on 1 November 2018.

The estimated street value of the dangerous drugs seized was $746,025.5.

Criminal Record

The defendant has a clear criminal record in Hong Kong.

Mitigation

The defendant is a Bolivian national aged 36 years, educated up to high school level in Bolivia, married with children and was a taxi driver earning US$300 a month.

The counsel for the defendant submits that the defendant is a decent and respectable person working hard to support his family and to repay the money he had borrowed to buy the motorcycle taxi. The defendant was driven to commit the offence due to poverty. He is now genuinely remorseful and feels shameful for what he has done, thus pleading guilty to the offence at the earliest opportunity.

The counsel submits letters of the defendant and a Catholic priest, Father Wotherspoon. The defendant says in the letter that he was a taxi driver and had to support his own family as well as his sister who is a single mother of four children. He also had to pay off the debts he had incurred in buying the motorcycle taxi, and this proved to be extremely difficult in Bolivia where the economic conditions were poor. He had been lured to commit the present offence and he now feels embarrassed and ashamed. He offers his apologies and asks for the mercy of the court.

Father Wotherspoon says in the letter that the defendant is helping him in his anti-drug campaign to warn people of South American countries to be made use of by drug traffickers to act as drug couriers.

The counsel for the defendant refers to the sentencing tariffs and asks the court to adopt a starting point of about 19 years 6 months imprisonment enhanced by 6 months to reflect the international element and then give discount to the defendant for his plea of guilty and the assistance he has offered to Father Wotherspoon.

Sentence

As rightly pointed out by the counsel for the defendant, according to the sentencing guidelines laid down by the Court of Appeal in AG v Rojas [1994] 1 HKC 342 and R v Lau Tak Ming and Others [1990] 2 HKLR 370, trafficking in 400 to 600 grammes of cocaine, the starting point is 15 to 20 years imprisonment. 571.3 grammes of cocaine is involved in the present case and the starting point is about 19 years 3 months imprisonment.

The defendant committed the offence due to his heavy financial burden in supporting his own family and the family of his sister as well as the repayment of the loan incurred in buying the motorcycle taxi.

The court has much sympathy for the defendant but must point out that this does not amount to valid mitigation. The court therefore adopts 19 years 3 months imprisonment as the initial starting point.

There is an aggravating factor in the present case in that the defendant smuggled the dangerous drug into Hong Kong from Dubai. Having considered authorities such as HKSAR v Chung Ping Kun CACC 85/2014, the court enhances the starting point to 20 years 3 months imprisonment.

Giving credit to the defendant for his assistance to Father Wotherspoon and the court adopts the ultimate starting point of 20 years imprisonment. Giving further credit to the guilty plea of the defendant, the court sentences him to 13 years 4 months imprisonment.