HKSAR v. Fabio Lopes

DCCC272/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 272 OF 2011

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Reasons for Sentence

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1.There are two charges in this case. Charge 2 is only an alternative to Charge 1. Defendant pleads guilty to Charge 1, which is doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug.

2.The defendant is a Guinean Bissau passport holder.  On 19 December 2010 he arrived at the Hong Kong International Airport from Thailand.  He tried to enter Hong Kong but the Customs searched him.  X-ray screening showed that there were foreign objects inside the defendant’s body. The officers later found there were 50 packets of a substance inside defendant’s body containing 0.72 kilogrammes of a powder containing a substance called Chloroquine.

3.Chloroquine is not a dangerous drug.  It is actually a Part 1 poison mainly used for treatment and prevention of malaria.  It can also be used for treating rheumatoid arthritis and systemic lupus erythematosis.

4.Under caution the defendant said a friend in Bangkok told him to swallow the 50 pellets to bring to Hong Kong.  The friend said it was cocaine and the defendant was promised a reward of US$1,000.  The defendant was told to contact this friend for further instruction after arriving here.

5.The defendant is aged 36, he has a clear record.  Defence counsel said the defendant actually has no conviction anywhere in the world.  Counsel says the defendant has been a merchant.  He had come to Hong Kong once before for business.  Some time ago the defendant went to Thailand to start learning the Thai language there.  An African acquaintance seduced him into doing the present job.  At that time the defendant needed the money for his living, education and to support his younger siblings.  He sucumbed to the request, he is now very remorseful.

6.The prosecutor has drawn me to the attention of a Court of Appeal case, CACC 159/1997, Yee Wing Leung.  That case is also mentioned in the District Court decision referred to me by defence counsel. In the case of Yee Wing Leung, a local person with clear record was found storing 1.06 kilogrammes of a mixture that could be used as a heroin adulterant. The Court of Appeal said that the proper starting point should be one of 4 years’ imprisonment.  In the sentence case referred to me by defence counsel, i.e., DCCC1018/2010, two local persons tried to export about 3 kilogrammes each of methyephedrine, a substances that could be used to manufacture NNDMA.  The Honourable District Court Judge adopted 5 years’ imprisonment as the starting point. 

7.In this case, defence counsel asks me to consider that the quantity of mixture is only 0.72 kilogramme and it contains only Chloroquine, which is a controlled Part 1 poison.  Counsel says there is no evidence that Chloroquine can be used as dangerous drug adulterant or for the manufacturing of any dangerous drugs.

8.It is true that there is no evidence that Chloroquine can be used as an adulterant or for the manufacturing of any dangerous drugs.  However, the defendant was paid a handsome of US$1,000 to bring 0.72 kilogramme of the mixture into Hong Kong in such secretive manner.  He was told that it was cocaine.  Whether the mixture would be used as adulterant or for the manufacturing of cocaine, we do not know, but I am sure that such mixture would be used by the drugs dealer with cocaine in one way or another. 

9.In sentencing the defendant, I take into consideration the mitigation factors advanced by defence counsel diligently.  I note that the defendant has a clear record.  I further take into account that he is a foreigner here, who has to serve a length of imprisonment in a place far from his homeland.

10.In the circumstances of the present case, I believe 3 years’ imprisonment is the lowest starting point I can adopt.  The defendant is allowed one-third discount for his plea of guilty.  Thus for his plea to Charge 1, he is sentenced to 2 years’ imprisonment.