HKSAR v. Gomes Da Costa Fabricia

HCCC 50/2020

[2020] HKCFI 2692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 50 OF 2020

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

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COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, personal background of the defendant and mitigation put forward on her behalf.

The facts of the case may be summarised as follows. The defendant arrived Hong Kong by air from Brazil via Ethiopia. Inside the down jacket she was wearing and some clothing inside her luggage, a total of 317.8 grammes of a solid containing 260 grammes of cocaine was found. She was arrested.

In a subsequent interview, she said the garments with cocaine concealed belonged to her and she bought them for herself.

The defendant was the holder of a Brazilian passport. She is now 21 years of age. She is single but has a daughter 5 years old who is living with the parents of the defendant. She attained education up to Form 1 and then stayed at home as she got pregnant. She had done some casual jobs at Ladies’ House but financially was basically reliant upon her parents.

In mitigation, learned counsel for the defence, Miss Crebbin, stressed that the defendant was only at the age of 19 when she committed the offence. She pleaded guilty at the earliest opportunity and she is now full of remorse. Miss Crebbin told the court that the father of her daughter deserted the family, leaving them under financial stress.

As regards the offence, Miss Crebbin explained that the defendant was initially ignorant of the illegal enterprise and she acted under the belief that she was coming to Hong Kong for a free holiday and to meet a friend she had come to know on the internet. It was only at a late stage that she came to realise she was to involve in this drug-trafficking activity. She carried on as she was naïve and under a degree of threat and pressure which Miss Crebbin accepted was short of duress. Miss Crebbin also stressed that the defendant has a clear record both in Hong Kong and Brazil.

The defendant wrote a letter which was not produced in which she expressed her remorse. Letters written by her parents were produced. Both spoke well of the defendant and pleaded leniency on her behalf. I was told that the defendant had participated in the campaign of Father Wotherspoon.

The narcotic content which the defendant trafficked in was 260 grammes of cocaine. I am satisfied that the role of the defendant was that of a courier. In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. In Lau Tak Ming, the Court of Appeal suggested that for sentencing in heroin for a quantity of 200 to 400 grammes, a sentence between 12 and 15 years should be considered. In all the circumstances of the present case, I do not consider there are any reasons to justify departure from the tariff.

The defendant brought dangerous drug into Hong Kong. This is a serious aggravating feature. For this reason, I enhance the sentence by 6 months.

In all the circumstances, I adopt an ultimate starting point of 13 years and 4 months. The defendant pleaded guilty before a magistrate and for this reason is entitled to a one-third discount.

Having regard to submission of Miss Crebbin, in particular having regard to the circumstances leading to the commission of the offence, and the defendant’s participation in the campaign of Father Wotherspoon, I am persuaded to give her a further discount of about 3 months. There is also information which I need to take into account and my assessment is that a further discount of about 4 months can be given to the defendant. Having considered the whole circumstances, in my judgment, this is the extent of discount the defendant is entitled to.

Defendant, please stand up. For the abovesaid reasons, I sentence you to an imprisonment term of 8 years and 3 months.