HKSAR v. Marcelo Agreda Agreda

HCCC6/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 6 OF 2010

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: On 31 December 2009, the defendant pleaded guilty at the Eastern Magistrate’s Court to one charge of trafficking in dangerous drugs.

A summary of the prosecution’s case was on that day read in open court and agreed by him. Today, before me, he has confirmed that plea of guilty and the accuracy of the summary of facts.

The particulars of the charge alleged that he had, on 18 August 2009 at the Hong Kong International Airport, trafficked in dangerous drugs, namely, 5.49 kilogrammes of a powder containing 3.58 kilogrammes of cocaine.

The summary of facts reveal that on 18 August the defendant arrived at Hong Kong International Airport from Bolivia via Johannesburg in South Africa aboard flight SA286. His luggage was examined and five slabs of what was suspected to be dangerous drugs were found inside false compartments. On analysis the five slabs were determined to be 5.49 kilogrammes of a powder containing 3.58 kilogrammes of cocaine.

It is an admitted fact that the dangerous drugs were valued in excess of HK$3.8 million.

With the consent of the defendant a controlled delivery operation was conducted at the Century Inn Hotel, North Point. No one appeared to take possession of the dangerous drugs and further efforts on the defendant’s part to contact those who had consigned this delivery from Bolivia were to no avail.

On 19 August 2009 the defendant was interviewed under caution. In that interview he admitted the following:

That he had collected the two hand-carry bags which contained the dangerous drugs from a Chinese male in Bolivia.

That he was instructed to bring them to Hong Kong and await further instructions via a telephone call.

The Chinese male in Bolivia had arranged the air ticket and the hotel booking for him.

He was to receive US$10,000 if he successfully delivered the cocaine.

And finally he admitted that he knew that what was contained in the two carry-bags was cocaine.

The defendant is 38 years of age. He is a Bolivian National. On his behalf, Mr Raffell has brought to my attention the family circumstances which prevailed and which led to him being engaged in the act of drug trafficking. They are, as it often the case, in circumstances such as this very sad.

I am told by Mr Raffell that he resorted to drug trafficking to obtain money to provide for the medical treatment of one of his children. Mr Raffell quite sensibly acknowledges that nevertheless these are not matters in mitigation for offences of this nature.

The Court of Appeal has made it abundantly clear that for offences of drug trafficking, the nature and personal circumstances of a defendant will rarely amount to significant mitigation.

Likewise Mr Raffell acknowledges that there has been no tangible benefit obtained by the authorities from the efforts made by the defendant to identify those who were involved in this act of drug trafficking.

The authorities make it abundantly clear that for any benefit to be given to a defendant that there must be a tangible result from such inquiries. As is often the case in cases of this nature no such benefits were obtained.

The defendant has pleaded guilty at the first opportunity. By reason of that he will receive a full one-third discount from the appropriate starting point for sentence.

The relevant authorities to which my attention has been drawn are as follows: R v Lau Tak Ming & Ors, [1992] HKLR 370; AG v Pedro Nel Rojas [1994] 1 HKC 342 and HKSAR v Abdallah [2009] 2 HKC 437.

With those authorities in mind I am satisfied that the appropriate starting point for sentence, before taking into account the international component of the defendant’s drug trafficking is a term of 25 years’ imprisonment. That equates to the second band of recommended sentences in Abdallah where 1200 to 4000 grammes a sentence of 23 to 26 years is advised.

I am required by reason of the observations of the Court of Appeal in Abdallah unless there be exceptional circumstances to enhance that sentence by a period of two years to accommodate the international component of the defendant’s drug trafficking.

The result is that the appropriate starting point after trial is a period of imprisonment of 27 years which will be reduced by one-third to a period of 18 years and that is the sentence that I impose.

Application against by the defendant sentence to Court of Appeal dismissed. Please refer to CACC80/2010 dated 2 September 2010