HKSAR v. Paredes Grandez Gledys Malvi and Another

HCCC 249/2019

[2020] HKCFI 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 249 OF 2019

-----------------

-----------------

---------------------------------

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

---------------------------------

COURT: The Charges and Pleas

D1 and D2 are Peruvian females aged 38 and 36 respectively. On 20 October 2018, D1 and D2 were found importing cocaine into Hong Kong from Lima, Peru. They were arrested and subsequently charged. Charge 1 against D1 concerned 1.14 kilogrammes of a liquid containing 624 grammes of cocaine. Charge 2 against D2 concerned 991 grammes of a liquid containing 544 grammes of cocaine. D1 and D2 pleaded guilty to Charge 1 and Charge 2 respectively and admitted the facts in a court below. They confirmed their guilty pleas and admitted the facts before me. I convicted D1 of Charge 1 and D2 of Charge 2.

The Facts

On 20 October 2018, D1 and D2 arrived at the Hong Kong International Airport on the same connecting flight seated on the same row on Ethiopian Airlines from Addis Ababa, Ethiopia. Their journeys, having originated in Lima, Peru, they both entered Hong Kong at 1.50 pm.

At around 3.48 pm on the same day, customs officer intercepted D1 and D2 who were walking together at customs arrival hall of the airport. At the time of the interception, D1 was in possession of US$1,000, Peruvian currency PEN 43 and one mobile phone with SIM card. D2 was in possession of US$1,000, Peruvian currency PEN 17.1, TBH 1 and one mobile phone with SIM card. D1 was in possession of a hotel booking under her name. D2 was also in possession of the same hotel booking under D1’s name.

D1 and D2 were brought to customs clearance room for investigation. After body search, both defendants were escorted to Accident and Emergency Department of North Lantau Hospital where they were examined. Medical examination confirmed that they had foreign objects inside their bodies. The defendants were then arrested and cautioned, under which neither of them made any response.

The defendants were then transferred to Queen Elizabeth Hospital where D1 discharged 38 packets consisting of plastic wrappings containing a total of 1.14 kilogrammes of a liquid containing 624 grammes of cocaine collectively referred to as E1 while D2 discharged 34 packets consisting of plastic wrappings containing a total of 991 grammes of a liquid containing 544 grammes of cocaine collectively referred to as E2.

The estimated street values of E1 and E2 were HK$1,277,940 and HK$1,110,911 respectively.

In the cautioned interview held subsequently, D2 confessed she was given the stuff to swallow in Lima by a Peruvian male to bring it to Hong Kong. She would receive US$4,000 as reward. She would go to a hotel upon arrival in Hong Kong and someone would contact her.

D1 now admits and accepts she possessed the dangerous drugs seized from her for the purpose of unlawful trafficking. D2 now admits and accepts she possessed the dangerous drugs seized from her for the purpose of unlawful trafficking.

Background Information of D1 and D2

D1 - D1 is now 39 years old, a Peruvian national. She is a divorcee and she lived with her 12-year-old son and parents in Peru. She has eight siblings. She had received education up to secondary school in Peru. She worked as a saleslady of food with a monthly income of 200 to 300 PEN. D1 has health issues of high blood pressure, erythema infection and kidney stones.

D2 - D2 is now 37 years old, a Peruvian national. She is single and she lived with her parents who are in their 70s in Peru. She has eight siblings. She had received education up to secondary school in Peru. She worked as a saleslady of cell phone accessories and with a monthly income of 800 PEN, that is US$240.

Mitigation and Consideration of Submissions

I have heard the mitigation by Mr Ross for D1 and Ms Mohamed for D2. I have also considered the materials placed before me by counsel in mitigation. Applying the sentencing guidelines as set out in R v Lau Tak Ming [1990] 2 HKLR 237 and HKSAR v Abdallah Anwar Abbas [2002] 2 HKLRD 437, although the cocaine trafficked by D1, that is 624 grammes, exceeded the threshold for the band of very large quantity of 600 grammes by 24 grammes, in my judgment, an initial starting point of 20 years’ imprisonment, that is the tariff at the top of the band for between 400 grammes and 600 grammes, is still appropriate for Charge 1.

Following the guidelines in HKSAR v Chung Ping Kun, CACC 85/2014, for the international element present in this case, given the amount of cocaine involved in Charge 1, I enhance the sentence by 1 year in the case of D1.

Applying the sentencing guidelines as set out in R v Lau Tak Ming [1990] 2 HKLR 237, in my judgment, an initial starting point of 18½ years’ imprisonment is appropriate for Charge 2.

Following the guidelines in HKSAR v Chung Ping Kun, CACC 85/2014, for the international element present in this case, given the amount of cocaine involved in Charge 2, I enhance the sentence by 1 year in the case of D2.

For the reasons given, I adopt an ultimate starting point of 21 years’ imprisonment for Charge 1 against D1 and 19½ years’ imprisonment for Charge 2 against D2.

D1 and D2 committed Charge 1 and Charge 2 respectively for economic reasons whilst the decisions to traffic cocaine for monetary reward were made at times when they were desperate for money amid financial difficulties. Their acts have put their family members they want to care for in destitution. It is well-settled that family difficulties and personal circumstances of the kind outlined by Mr Ross and Ms Mohamed cannot count as mitigating factors.

The strongest mitigating factor in this case is that D1 and D2 each pleaded guilty at the earliest opportunity and each is entitled to the full one-third reduction for their guilty pleas. I also exercise my discretion to give D1 and D2 a further reduction of 3 months on account of their participation and assistance rendered in Father Wotherspoon’s campaign to combat drug trafficking. The one‑third reduction and the 3-month additional reduction for the defendants’ participation in Father Wotherspoon’s campaign bring D1’s sentence down to 13 years and 9 months and the sentence of D2 down to 12 years and 9 months.

I can see no other mitigating factors which can further reduce the defendants’ sentences. For the reasons given, on Charge 1, I sentence D1 to 13 years and 9 months’ imprisonment. On Charge 2, I sentence D2 to 12 years and 9 months’ imprisonment.