CRIMINAL CASE NO. 202 OF 2009
COURT: The two defendants, who are both Colombian nationals, have pleaded guilty to a joint charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, Laws of Hong Kong, the particulars being that they, on 25 December of last year, at the Customs Arrival Hall at Hong Kong International Airport, trafficked in 488.77 grammes of a mixture containing 272.95 grammes of cocaine.
The Summary of Facts, which both defendants have agreed, indicate that at 35 minutes past 3 in the morning of 25 December last year, at the Customs Arrival Hall, both defendants were stopped and searched, having just arrived from Bogotá, in Colombia. Strapped to the soles of their feet was an inner sole, inside which officers found two packets of cocaine on each defendant, the total of which consisted of the drugs being the subject matter of the charge.
The following day, in a video-recorded interview, the 1st defendant told officers that some three months ago he had been approached by a Chinese man in Hong Kong who asked him to bring in some cocaine. He bought the cocaine for US$2,000. He offered the 2nd defendant US$10,000 as a reward for helping him. The 1st and 2nd defendants tied the drugs to their feet before setting off, and he intended to sell the drugs to the Chinese male for US$30,000.
The 2nd defendant also made a video-recorded interview in the course of which he said that he knew that what he was carrying was cocaine and that he was promised US$6,000 for bringing the drugs into Hong Kong.
D1 at the time of his arrest was 24 and the 2nd defendant just 26. Both are single and both have clear criminal records in Hong Kong. I'm told by their respective counsel that neither D1 nor D2 have any criminal convictions in Colombia, and certainly with regard to the 2nd defendant this does appear to be correct as one of the documents shown to me on his behalf is a Judicial Certificate indicating this to be the case.
With regard to the 1st defendant, I take into account all that has been said by way of mitigation, including the fact that he agreed to a control delivery of the drugs, but due to a miscommunication this never materialised. With regard to the 2nd defendant, I also take into account all that has been said on his behalf by way of mitigation and I have read all the supporting documents, including the handwritten letter written by the 2nd defendant to the court.
I do not, however, accept the proposition put forward by Mr Whitehouse that as the 2nd defendant was not playing the leading role in this illicit enterprise, that he should therefore be sentenced merely on the amount of drugs he carried; some 142.8 grammes, I believe. This was clearly a joint enterprise between the two defendants, albeit with the 1st defendant playing the leading role. Each helped the other to strap the drugs to their feet, the 1st defendant clearly needing the assistance of the 2nd defendant to bring in this quantity of drugs to Hong Kong.
With regard to the 1st defendant, mitigation has been put forward on his behalf that he was a courier. I do not agree. He was not merely a courier. By his own admission he stood to gain some US$18,000 from the sale of this quantity of cocaine after deducting the reward that he offered to the 2nd defendant and the price that he paid for the drugs in Colombia. The fact that he recruited the 2nd defendant to assist him is an aggravating feature.
As far as sentence is concerned, with respect to both defendants I adopt a starting point of 13 years' imprisonment. With regard to the 1st defendant, however, I will increase the starting point to a term of 14 years to reflect the aggravating feature that I have identified. To reflect his plea of guilty, I will reduce this by one-third coming to a sentence of 9 years and 4 months' imprisonment.
With regard to the 2nd defendant, I reduce the starting point of 13 years also by one-third to reflect his plea of guilty, coming to a term of 8 years and 8 months' imprisonment.