HKSAR v. Paul Shaun Wayne Wendell

HCCC 145/2020

[2020] HKCFI 2712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 145 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, Mr Paul Shaun Wayne Wendell, 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, Cap 134.

The particulars of offence are that the defendant, on 3 September 2019, at Customs Arrivals Hall B, Passenger Terminal Building 1, Hong Kong International Airport, Chek Lap Kok, Lantau Island, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 915.7 grammes of a solid containing 406.8 grammes of cocaine.

He is committed to this court for sentence.

Facts Admitted

On 3 September 2019, at about 1740 hours, the defendant, a Guyanese male, arrived in Hong Kong from Sao Paulo, Brazil, via Doha, Qatar. He was refused landing by the Immigration Department.

On customs clearance, it was found that his two black suitcases, of which one was check-in and the other hand-carried, had respectively 663.7 grammes of a solid containing 299.9 grammes of cocaine and 252 grammes of a solid containing 106.9 grammes of cocaine hidden in their pulling rods.

The total retail value of the dangerous drug was $1,155,613.40.

In a video-recorded interview subsequently conducted, the defendant claimed that he was an engineer in Guyana earning about US$1,000 a month. He went from Guyana to Sao Paulo for sightseeing and he planned to stay in Hong Kong for 3 weeks. He had US$950 on him as travelling expenses. He bought the 2 suitcases through a friend in Sao Paulo. He denied the offence in the interview.

Criminal Record

The defendant has a clear criminal record in Hong Kong.

Mitigation

The defendant is 42 years old, divorced, with two children aged 11 and 13 who were provided for by the defendant financially.

Counsel for the defendant says that the defendant was a qualified engineer in Guyana, having been in the profession for a number of years. He earned about US$1,000 a month before he was arrested. His father is alive but his mother passed away when he was in custody in Hong Kong. He missed the last chance to see his mother alive.

The defendant was exploited by his friends to commit the present offence. The defendant admits that this is no excuse for that. He knows that he had brought shame to the family and is now extremely remorseful, thus pleading guilty at the earliest opportunity. He apologises to the court and Hong Kong people.

The defence counsel submits a letter of mitigation of the defendant. In the letter, the defendant expresses remorse and asked for forgiveness. He promises to do his best to be a better husband and a better father.

Counsel for the defence points out that the defendant will have to spend many years in gaol in Hong Kong and his two children will have to go through their teenage without a father. The counsel says that it would be a hard time for the defendant to serve the sentence in Hong Kong. She points out that the sentence in the present case falls within the band of 15 to 20 years imprisonment. She stresses that the court does have some leeway to depart from the sentencing guidelines. She urges the court to enhance the sentence for international element by not more than 9 months and be lenient to the defendant.

Sentence

The Court of Appeal set down sentencing guidelines for trafficking in cocaine in R v Rojas [1994] 1 HKC 342 and R v Lau Tak Ming and Others [1990] 2 HKLR 370. For a quantity of 400 to 600 grammes of cocaine, the starting point is 15 to 20 years imprisonment. The amount of cocaine in this case is 406.8 grammes and the starting point is approximately 15 years 2 months imprisonment.

The court has much sympathy for the defendant that he is unable to see his mother for the last time before she died and will miss seeing his children growing up. However, in an offence of such serious nature, these do not constitute valid mitigation.

Considering the circumstances of the case, the court is of the view that there is no reason to depart from the sentencing guidelines, thus adopting 15 years 2 months imprisonment as the basic starting point.

The case involves an international element in that the defendant imported the dangerous drug into Hong Kong. This is an aggravating factor which necessitates the court to enhance the sentence. Having consider the authorities such as HKSAR v Chung Ping Kun, CACC 85/2014, HKSAR v Chan Ka Yiu, CACC 147/2016 and HKSAR v Islam Azharul, CACC 98/2019, the court enhances the starting point to 15 years 9 months imprisonment.

Giving credit to the defendant for his plea of guilty, the court sentences the defendant to 10 years 6 months imprisonment.