HKSAR v. Andrade Pereira Dos Santos Thiago Felipe

HCCC 122/2020

[2020] HKCFI 2906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 122 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 has pleaded guilty to one count of trafficking in a dangerous drug, namely, 671.27 grammes of a solid containing 522.01 grammes of cocaine.

Now, as the facts of the case admitted show, the defendant arrived in Hong Kong on 17 May last year from Brazil via Dubai. In his luggage was found four pieces of garment packed in two transparent plastic bags which was contained inside a zipped lining inside the suitcase. These four pieces of garment were examined and found to contain cocaine upon ion scan and therefore these garments, in other words, were soaked in cocaine and dried. Government chemist subsequently examined these garments and the drugs, the quantity which is the subject matter of the charge, was found.

In a cautioned interview, the defendant said that a person called Dafinny Prima had placed those plastic bags of clothing inside a suitcase to be brought to Hong Kong. He then in a video-recorded interview gave an account of what had happened prior to coming to Hong Kong. He claimed that he knew this person called Dafinny through a good friend of his in Brazil called Sharon and that Dafinny told him that upon his arrival in Hong Kong and checking into the hotel, he will be contacted by someone. The only information he could supply about Dafinny Prima was only his mobile phone number. He also could only supply the phone number of Sharon, his supposedly very good friend. However, he did not know the full name or surname of Sharon.

The estimated street value of the dangerous drug seized is approximately HK$663,886.

The defendant is aged 24 and I am told he has a clear record both here and in Brazil. Mr Whitehouse submitted many testimonials in relation to the defendant’s good character in Brazil from his friends, relatives and family.

Drug trafficking is a very, very serious offence in Hong Kong and we are facing many, many drug couriers from the South American continent coming into Hong Kong with drugs. Customs and Excise Department are doing a constant daily battle in trying to stop these drugs from coming into Hong Kong and ruining Hong Kong society. However, the temptation of easy money from these drug traffickers very often tempt the less fortunate in society to participate in this nefarious trade, and that is why the courts in Hong Kong have laid down severe sentences for people who come into Hong Kong to bring drugs into Hong Kong.

For the case of cocaine, the Court of Appeal has laid down sentencing guidelines in the case of Lau Tak Ming in 1990 that for trafficking in between 400 to 600 grammes, the sentencing guideline should be 15 to 20 years’ imprisonment after trial. In this case, the amount of 522 grammes would merit a guideline-sentence starting point of 17½ to 18 years’ imprisonment. I do take into account what has been said about the case, the background of this case and also the background of the defendant, and I will adopt the lowest starting point of 17½ years.

Now, the only mitigating factor which I can see in this case is that the defendant had pleaded guilty at the earliest opportunity and is entitled to one-third discount. However, Ms Chit on behalf of the prosecution very fairly has brought to the notice of this court that the defendant, after his arrest, had agreed to participate in a controlled delivery which Mr Whitehouse was not originally aware of until Ms Chit had mentioned it. And so according to Ms Chit, the defendant indeed was taken to the hotel which he had originally booked and he did telephone the person whose telephone number he had but that person did not contact him. So the controlled delivery was unsuccessful. So that would be a factor in mitigation which I would have to recognise.

Now, as I have said, the starting point is 17½ years. He is entitled to the full one-third discount. However, before that, I have to consider whether to enhance the sentence according to the Court of Appeal case in HKSAR v Chung Ping Kun in 2014 where the Court of Appeal said that for trafficking in between 250 and 500 grammes, the enhancement for international element, that is importation, would be between 6 months to 1 year. So the drugs in this case being just slightly over 500 grammes, I would enhance the 17½ years by 1 year to 18½ years.

Now, as I have said, he is entitled to his one-third discount and also to some recognition for the unsuccessful controlled delivery, so I have decided to give him a discount of 36 per cent and that will reduce the sentence to one of 11 years and 10 months.

So the defendant will go to prison for 11 years and 10 months.