HKSAR v. Rivillas Marin Luis Fernando and Another

HCCC 418/2019

[2020] HKCFI 1977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 418 OF 2019

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

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COURT: At the committal proceedings in the Magistrates’ Court, the 1st accused, Mr Rivillas Marin Luis Fernando, and the 2nd accused, Mr Sandoval Salas Felipe Arturo, pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The particulars of the offence are that the two accused on the 13th day of September 2018, at Room B, Flat B, 11th Floor, Hang Yu Building, 45-55 Cadogan Street, Kennedy Town in Hong Kong, unlawfully trafficked in a dangerous drug, namely 55.6 grammes of a solid containing 47.8 grammes of cocaine. This is Charge 1 in the present case.

The 1st accused also pleaded guilty to one count of possession of dangerous drug and one further count of trafficking in dangerous drugs which are respectively Charge 2 and Charge 3 in the present case. The count of possession of a dangerous drug is contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134.

The particulars of offence are that the 1st accused on the 13th day of September 2018, at Room B, Flat B, 11th Floor, Hang Yu Building, 45-55 Cadogan Street, Kennedy Town in Hong Kong, had in his possession a dangerous drug, namely 0.83 gramme of cannabis in herbal form.

The Count 3 of trafficking in dangerous drugs is contrary to the same statutes as stated in the 1st count. The particulars of offence are that the 1st accused, on the same day and address as stated in the other two counts, unlawfully trafficked in dangerous drugs, namely 780.42 grammes of a solid and a powder containing 677 grammes of cocaine and 5 tablets containing 0.96 gramme of 3,4‑methylenedioxymethamphetamine.

They are committed to this court for sentence.

Facts Admitted

The 1st accused is a Colombian who made a non‑refoulement claim on 2 May 2014 and has been released on recognisance since 18 June 2014. The 2nd accused is a Chilean who entered Hong Kong as a visitor on 22 August 2018 with permission to stay in Hong Kong for 90 days until 20 November 2018.

At about 9.56 pm on 13 September 2018, the two accused were intercepted by the police when they were leaving Room B, Flat B, 11th Floor, Hang Yu Building, 45-55 Cadogan Street, Hong Kong (hereinafter referred to as “the room”). They were taken into the room using the keys seized from the 2nd accused to open the door.

A plastic bag with 60 plastic bags inside containing a total weight of 55.6 grammes of solid containing 47.8 grammes of cocaine with an estimated street value of HK$79,953 was seized from the waistband of the pants the 2nd accused was wearing.

A plastic bag containing 3 pieces of paper and 0.83 grammes of herbal cannabis was seized from the right front trousers pocket of the 1st accused.

The two accused were arrested and cautioned. The 1st accused was found in possession of cash HK$11,510 and US$100 while the 2nd accused was found in possession of cash HK$790.

Inside a suitcase stored under a sofa secured by a padlock which was unlocked with the keys seized from the 1st accused, the police found:

(a) 3 plastic bags containing a total of 780.4 grammes of a solid containing 677 grammes of cocaine with an estimated street value of HK$1,122,215;

(b) a plastic bag containing 5 tablets containing a total of 0.96 gramme of 3,4‑methylenedioxymethamphetamine with an estimated street value of HK$375;

(c) a pair of plastic forceps containing 0.02 grammes of a powder containing cocaine;

(d) 2 plastic spoons and 2 electronic scales containing traces of cocaine.

In a video-recorded interview conducted subsequently, the 2nd accused admitted, inter alia, that he was a visitor in Hong Kong planning to leave in October 2018. He carried the cocaine found on him for the 1st accused for a reward of $9,000.

The room was rented by one Barrera Carnina Lissette who could not be located. The lease was for two years starting from 15 January 2016 at a monthly rent of HK$6,000.

Criminal Record

The 1st accused has 4 previous convictions, all dated 31 March 2014, of which 2 were dangerous-drugs-related. He was sentenced to a total of 5 months imprisonment.

The 2nd accused has a clear record.

Mitigation

The 1st accused is a Colombian aged 41. He has a Diploma in Tourism. He is married with a two-year-old son. He made a non-refoulement claim on 2 May 2014 as a torture claimant. He had been released on recognisance since 18 June 2014 and remained so until his arrest on 13 September 2018.

Counsel for the 1st accused points out that as the 1st accused was not allowed to work as a torture claimant, he was under tremendous financial pressure to raise his family. The counsel points out that the starting point for trafficking in 47.8 grammes of cocaine is about 7 years 11 months imprisonment while that for 677 grammes of cocaine is 20-odd years, and that when the 2 are combined together to form a total weight of 724.8 grammes of cocaine, it is within the range of 20 to 23 years imprisonment. As regards the small amount of cannabis and 3,4‑methylenedioxymethamphetamine, commonly called MDMA, the starting points are within the discretion of the court.

The counsel cites the authorities of HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 and HKSAR v Ali Saif, CACC 309/2017 to say that the enhancement of sentence for an offender being a non-refoulement claimant in a serious offence is not less than 6 months imprisonment.

The counsel submits to court a letter written by the 1st accused, saying that he committed the offence because he was desperate to make money to treat his son who had fallen ill in Colombia and the medical bill amounted to 8 million Colombian peso which, according to the counsel, was about HK$16,500. In this connection, the counsel submits the document relating to the medical treatment of the son to court.

The counsel also submits to court a letter of Father Wotherspoon, saying that the 1st accused has assisted in his anti-dangerous-drug campaign. The counsel asks the court to give discount in sentence to the 1st accused for his early guilty plea and assistance rendered to Father Wotherspoon’s campaign as well as other mitigating circumstances, citing in support the case of HKSAR v Kilima Abubakar Abbas, CACC 143/2016.

The 2nd accused is a Chilean aged 29. In 2001, he went to London to join his mother who worked and later got married there. He was educated up to secondary school level in the United Kingdom. He then worked for a catering company specializing in private catering.

Counsel for the 2nd accused points out that the 2nd accused, while spending a holiday in Hong Kong, came to know the 1st accused, then out of greed, agreed to work as a courier for dangerous drug for easy money.

The 2nd accused has a clear record in both the United Kingdom and Hong Kong and made a full admission to the police after arrest. He is genuinely remorseful for his foolish deed and pleaded guilty at the earliest opportunity.

The counsel submits to court 2 letters written by the 2nd accused which say that he has come to Hong Kong for a holiday but has, out of greed, committed the offence. The counsel points out that for trafficking in the amount of 47.8 grammes of cocaine, the starting point is 7 years 9 months imprisonment. He emphasizes that the 2nd accused did not come to Hong Kong in order to commit the crime and asks the court not to enhance the sentence for this reason. The counsel asks for a lenient sentence for the 2nd accused.

Sentence

According to the sentencing guidelines set down in R v Lau Tak Ming and Others [1990] 2 HKLR 370 and AG v Rojas [1994] 1 HKC 342, trafficking in 10 to 50 grammes of cocaine, the starting point is 5 to 8 years imprisonment while that for 600 to 1,200 grammes of cocaine is 20 to 23 years imprisonment. The amount of cocaine involved in Count 1 is 47.8 grammes and the starting point should be about 7 years 11 months imprisonment.

The 1st accused is a torture claimant and a Form 8 recognisance holder. There are ample authorities saying that this is an aggravating factor for he has betrayed the trust of Hong Kong people placed on him. This is recognized by the counsel for him. Having considered the authorities cited by the counsel for the 1st accused and the case of HKSAR v Dramane Mouhamed Saiti, CACC 191/2016, the court enhances the starting point for the 1st accused to 8 years 7 months imprisonment. Although the 1st accused has previous convictions relating to dangerous drugs, the court decides not to enhance the sentence for this reason.

The 1st accused has assisted the campaign or the anti-drug campaign of Father Wotherspoon, and for this, the court reduces the starting point to 8 years 5 months imprisonment.

The 1st accused explains in his letter to the court that he did not commit the offence out of greed but because he was desperate to earn money to treat the illness of his son. It is indeed ironical that the 1st accused, by trafficking in dangerous drugs to save his son, he is ruining the lives of the sons and daughters of a lot of parents. This cannot be an excuse to deal in dangerous drugs and is certainly not a valid ground of mitigation.

Giving credit to the 1st accused for his guilty plea and other mitigating circumstances, the court sentences him to 5 years imprisonment for Count 1.

According to the counsel for the 2nd accused, the 2nd accused had come to Hong Kong for a holiday and would stay in Hong Kong from August to October 2018. The court has grave doubt that the 2nd accused would stay in Hong Kong for almost 2 months if he really had come to Hong Kong only for holiday. As there is no direct evidence that he had come to Hong Kong to deal in dangerous drugs, the court gives him the benefit of doubt and does not enhance the sentence for this reason. The court adopts 7 years 11 months imprisonment as the starting point.

Giving credit to his plea of guilty, the court sentences him to 5 years 3 months imprisonment for Count 1.

In Count 2, the amount of herbal cannabis involved is only 0.83 grammes. As already pointed out by the counsel for the 1st accused, the sentence is at the discretion of the court. Having considered the circumstances of the case and the guilty plea and other mitigating circumstances of the 1st accused, the court sentences him to 1 month imprisonment for Count 2.

In Count 3, cocaine and MDMA are involved. As the amount of MDMA is very small as compared to that of cocaine, the court sets the starting point on the basis of the cocaine and then adjust it to reflect the existence of MDMA. For 677 grammes of cocaine, the starting point should be 20 years 4 months imprisonment. To this, the court adds 1 month for the MDMA which was also one of the dangerous drugs being trafficked.

For the aggravating factor of the 1st accused being a Form 8 recognisance holder, the court enhances the starting point of 20 years 5 months imprisonment to 22 years imprisonment, which is reduced to 21 years 9 months imprisonment for the assistance rendered by the 1st accused to the anti-drug campaign of Father Wotherspoon.

Giving credit to the 1st accused for his guilty plea and other mitigating circumstances, the court sentences him to 13 years imprisonment for Count 3.

For the sake of fairness, the sentence imposed on the 1st accused in this case should not be more than what he gets if he trafficked the dangerous drugs in the Count 1 and Count 3 together. The total weight of cocaine in these 2 counts is 724.8 grammes which, according to the sentencing guidelines, would have a starting point of 23 years 7 months imprisonment. Adding 1 month for the MDMA, the starting point becomes 23 years 8 months imprisonment.

The court is of the view that the amount of enhancement for the aggravating factor of the 1st accused being a Form 8 recognisance holder should be more than that for the cocaine in the two counts when they are considered separately. The court therefore adopts a starting point of 25 years 5 months imprisonment, which is reduced to 25 years 2 months imprisonment for the assistance rendered to the anti-drug campaign of Father Wotherspoon.

After giving credit to the 1st accused’s plea of guilty and other mitigating circumstances, the sentence would be about 15 years imprisonment.

The court is of the view that this sentence sufficiently reflects the culpability of the 1st accused in the 3 counts. The court therefore orders 2 years of the sentence of Count 1 to run consecutively to the sentence in Count 3 and to run concurrently with the sentence of Count 2, making a total of 15 years imprisonment for the 1st accused in the 3 counts.