HKSAR v. Rodrigues De Araujo Raimundo Nonato

HCCC 209/2020

[2021] HKCFI 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 209 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 at the committal proceedings to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the defendant, on 1st day of September 2019 at the Customs Arrival Hall A, Terminal 1, Hong Kong International Airport, Chek Lap Kok, Lantau Island in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 1,529 grammes of a solid containing 1,257 grammes of cocaine.

He is committed to this court for sentence.

Admitted Facts

The defendant, a Brazilian, arrived at the Hong Kong International Airport on 1 September 2019 at 1635 hours from Sao Paulo, Brazil, via Addis Ababa, Ethiopia. He was intercepted by the Customs and Excise and was arrested and cautioned on the finding of two towels in his suitcase which were unreasonably heavy and hard. It was later found from the two towels a total of 1,529 grammes of a solid containing 1,257 grammes of cocaine.

In a video-recorded interview subsequently conducted, the defendant admitted that he had delivered the cocaine to Hong Kong for an unknown African male for a reward of 8,000 to 10,000 Brazilian currency which was equivalent to about HK$11,815 to HK$13,520. He had collected the suitcase from an unknown German male in Sao Paolo. He was to deliver the suitcase to someone at a hotel in Hong Kong.

The retail value of the cocaine was HK$1,929,598.

Criminal Record

The defendant has a clear criminal record in Hong Kong.

Mitigation

The defendant is 50 years old. He was born in Brazil where he completed secondary education. He had worked as a farmer, brick layer, and construction supervisor. His earnings fluctuated but were about HK$10,000 for a project usually lasting around 6 months. He became unemployed in 2016.

He is divorced and had to support financially his ex-wife and his girlfriend, as well as their son who is aged 14 years old and stepson, who is aged 20. He also had to support the grandson of his girlfriend. The girlfriend is of ill health.

Counsel for the defendant submits to court the marriage certificate of the defendant, the birth certificate of his 14-year-old son and the medical report of his girlfriend. She tells the court that the defendant had to struggle to make ends meet. She also submits to the court letters written by the defendant himself, his eldest son and daughter. The children all speak highly of the defendant as a hardworking and loving father. The defendant basically says in his letter that he committed the offence because of his desperate financial needs.

The counsel for the defendant points out that the ill health of the defendant’s girlfriend required treatment with expensive medication and the defendant had, as a result, accrued a debt of about 6,000 Reals which was equivalent to about HK$8,600. The defendant committed to the offence to get money to repay the loan.

The counsel for the defendant cites the case of HKSAR v Abdallah [2009] 2 HKLRD 437 about the sentencing guidelines of trafficking in cocaine and said that after enhancement of the sentence for international element, the starting point should be about 25 years imprisonment. She urges the court to give discount to the defendant for his guilty plea and his assistance to the campaign of Father John Wotherspoon to alert people in not being exploited by drug traffickers to bring dangerous drugs into Hong Kong. She cites the case of HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 in support.

She also asks the court to take into account that the defendant has given a non-prejudicial statement to the Customs and Excise providing information on persons involved in this case. Although the Department of Justice has indicated that the information is of no practical use, it has been forwarded to the Brazilian authorities. She asks the court to give some discount in sentence to the defendant in this regard as an encouragement to people to assist the authorities.

Sentence

The Court of Appeal in Attorney General v Rojas [1994] 1 HKC 342 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 laid down sentencing guidelines for trafficking in cocaine. For a quantity of 1,200 to 4,000 grammes of cocaine, the starting point is 23 to 26 years imprisonment. The amount of cocaine involved in the present case is slightly more than 1,200 grammes. The starting point is therefore approximately 23 years imprisonment.

The defendant committed the offence because of economic reasons. This, of course, cannot be an excuse to offend the law in Hong Kong and is certainly not a valid reason for mitigation. The court is of the view that there is no justification to depart from the sentencing guidelines, thus adopting 23 years imprisonment as the basic starting point.

As rightly pointed out by the counsel for the defendant, there is an aggravating factor in the present case in that the defendant brought the cocaine into Hong Kong from Brazil. After considering the authorities such as HKSAR v Chung Ping Kun, CACC 85/2014, the court enhances the basic starting point by 2 years and adopts 25 years imprisonment as the starting point for the present case.

Giving a discount of 3 months imprisonment to the defendant for his assistance to the campaign of Father John and a discount of 9 months imprisonment for his efforts to assist the Customs and Excise, the court reduces the starting point to 24 years imprisonment.

Giving credit to the defendant for his plea of guilty, the court sentences him to 16 years imprisonment.