HKSAR v. Dos Santos Silva Cleilson

HCCC 344/2019

[2020] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 344 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, on 14 October 2019, you pleaded guilty before a magistrate to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You were committed for sentence here at the Court of First Instance. You admitted that on 2 December 2018 at the Customs Arrival Hall, Hong Kong International Airport, you unlawfully trafficked in 981 grammes of a solid containing 818 grammes of cocaine.

In the night of 2 December, you arrived in Hong Kong on a flight originating from Sao Paulo, Brazil. You had caught a connecting flight, however, from Addis Ababa, Ethiopia to Hong Kong. Upon your arrival, you were intercepted by officers at the Customs Arrival Hall of the Hong Kong airport. A search was conducted and officers found a packet inside a zipped pocket of your shoulder bag. It was later confirmed that this packet contained some of the dangerous drugs that you have been charged with. You were arrested and cautioned and remained silent.

Early on 3 December 2018, that is at about 20 past midnight whilst inside the disabled toilet inside the Customs Arrival Hall, you discharged from your body 15 packets containing part of the drugs as mentioned in the charge. You were then escorted to the North Lantau Hospital and upon medical examination there, it was confirmed there were foreign objects inside your body. You were then transferred to Queen Elizabeth Hospital for further medical examination. Whilst you were hospitalised at the Queen Elizabeth Hospital, you discharged a further 84 packets over a course of three days of the drug cocaine.

At the time of your arrest, you were in possession of cash of US$1,450, a mobile phone and a small amount of Brazilian money. In a video-recorded interview taken from you afterwards, again, you remained silent.

The street value of the drugs found upon you amounted to an estimated amount of $1,019,259.

You are a Brazilian and aged 29. You have been educated up to the first year of secondary school but you have not completed it. You are single. You have a clear record. Prior to you coming to Hong Kong, you worked as a gold mining worker earning approximately HK$5,900.

Your counsel, Mr Andrew Raffell, has mitigated on your behalf and I have taken into account all that he has had to say. In short, what he has informed me is that from the very beginning when he saw you, you admitted your guilt. You have never tried to reason or give any excuse as to why you did this, but for the fact, as in the majority of these type of cases, it is because of the dire financial situation or circumstances that you faced and, of course, in expectation that you would receive money for what you did. It is unfortunate that people like yourselves are used by these terrible drug traffickers.

You are a young man, and at least had some employment in Brazil. But you succumbed to the temptation to make fast, quick money. Clearly risking your life because if one of these packets or pellets had burst and, of course, knowing if you were to be caught, you would be punished severely.

I have received a letter from you today expressing your remorse and that you have learned that you have made a very, very big mistake.

As Mr Raffell has said, the strongest and only mitigating factor in this case is your early plea of guilty. For this you will be awarded the full one-third discount.

For trafficking in dangerous drugs, the Court of Appeal in Hong Kong have laid down guidelines. For the drugs cocaine, the leading case is that of Lau Tak Ming and Abdallah. You had trafficked in 819 grammes of cocaine. In following those guidelines, had you been convicted after trial, I would have taken a starting point of 21 years’ imprisonment. You had brought these drugs into Hong Kong, that is, you ingested them, you came from another country, that is Brazil to Hong Kong and the court has also said that this is an aggravating factor such that there should be an enhancement to the starting point. For this, what is known as the international element, the starting point is enhanced by 18 months. That means the sentencing point to which I take had you been convicted after trial is one of 22 years and 6 months’ imprisonment.

As you pleaded guilty at the very first opportunity, I discount that term by one-third, and you shall be sentenced to 15 years’ imprisonment.