COURT: This is not a case where any good will be served by my delivering a homily on the evils of the international traffic in dangerous drugs. All the defendants are well aware of those evils and the damage that dangerous drugs, and cocaine in particular, cause to human beings. All chose to ignore them, and all knowingly engaged in this filthy trade.
The quantity of drugs involved in this case is staggering. The total of the cocaine found in the warehouse, in the Nob Hill flat, and in the four bags the 1st, 2nd, 3rd and 4th defendants were caught carrying in Fuk Hong Tsuen Road is 538 kilograms of a mixture with an active cocaine content of 422.5 kilograms.
Due to the vigilance of the police, this has been one of the largest drug seizures in Hong Kong in recent years. The street value of the drugs is estimated at over half a billion Hong Kong dollars. When converted to United States dollars, the street value is in the region of US$65 million.
Aggravating all of the six defendants’ offences is the fact that they are foreign nationals. The 1st defendant is an American citizen. The 2nd, 3rd, 4th, 5th and 6th defendants are Mexican citizens. All came many thousands of miles to Hong Kong to play their part in this major cocaine distribution centre located in the suburbs of Tuen Mun.
It is a matter of common sense that it was intended that the majority of that cocaine would be smuggled out of Hong Kong, most likely to the mainland.
Judges have said before now, and I will say it again: the authorities will do all that they can to ensure that Hong Kong does not acquire the reputation of being a drugs transit centre for South-East Asia and Greater China, and those who choose to come here for that purpose will, when caught, receive very heavy prison sentences.
This morning I invited Mr Oderberg, counsel for all defendants, to address me on the question of whether or not a discretionary life sentence was the appropriate one for some or all of these defendants.
After hearing his arguments and considering the matter in chambers, I am satisfied that it is not. This, although an extremely bad case of international drug trafficking, is not the worst case that can be imagined; neither do any of the defendants appear to be the prime movers in the criminal enterprise.
The 1st, 2nd, 3rd, 4th and 5th defendants were clearly mules; the ones recruited to move the cocaine around Hong Kong. Mules they may have been, but nevertheless, mules are perhaps the most important players in these enterprises, for without them, the enterprise would fail, and the courts regard mules just as equally culpable as those who command them.
The 6th defendant stands in a higher position in the hierarchy. He owned the company and brought in the waste in which the cocaine was concealed into Hong Kong, and it is clear that he was the tenant of the Fuk Hong Tsuen warehouse. It was clear from the evidence given at the 4th defendant’s trial that he was the one who gave orders to the others. But the evidence went no further than that. The names of other people not before this court were raised at the 4th defendant’s trial, there is no evidence of the role they played in the overall enterprise and what their position in the hierarchy was.
I am taking it that the 6th defendant’s role, significant though it was, was that of the local area manager, the one controlling the Hong Kong end of the venture, but there is no evidence that he was the overall venture or enterprise’s mastermind.
All defendants are of clear record, but that is only in the sense that none of them have previous convictions recorded against them either in Hong Kong and, so far as is known, in Mexico, or, in the 1st defendant’s case, the United States of America. All are relatively young persons in their thirties or late twenties. All have children back in Mexico. I am told that the 1st, 5th and 6th defendants have wives or girlfriends back in Mexico.
I am told that the 4th defendant’s mother is severely incapacitated following a stroke. I am also told that the 5th defendant’s younger daughter suffers from the effects of a brain tumour; and quite clearly, the family life of the 2nd and 4th defendants, who are husband and wife, is totally ruined. Their child will be brought up without really knowing who they are.
I readily accept that, with the possible exception of the 6th defendant, all became involved in this enterprise for little financial reward, and were driven to participate because of debt problems.
But all that being said, the fact remains, and it cannot be ignored or minimised, that they chose to become involved and to actively participate in the enterprise.
The legal authorities set out for my guidance are very clear on the matter. Good character, in the sense of no previous convictions, and family hardship, such as the existence of chronically sick parents, spouses or children, counts for very little when it comes to sentencing in drug trafficking cases of this magnitude.
The 1st, 2nd, 3rd, 5th and 6th defendants will receive the now well recognised one-third discount in sentence to reflect their guilty pleas, but in their cases there will be no further discount in sentence for good character and family hardship.
The 4th defendant cannot expect to receive that one‑third discount. As was her right, she contested the case against her, and was found guilty on one of the two counts laid against her. By her not guilty plea, she forfeited her expectation of a substantial discount in sentence.
I have given consideration as to what discount, if any, I could give her to reflect her good character and her family circumstances, and I have come to the decision that I cannot give her one. It was she who gambled with her own and her child’s happiness by becoming involved in this enterprise. Indeed, she involved her child in it by bringing him here to Hong Kong from Mexico when she could, quite clearly, have left him in the care of relatives back in Mexico City, and she involved the child by taking him along with her on 16 September to the Fuk Hong Tsuen Road warehouse.
In his closing submissions to the jury last week, Mr Marray suggested that the child was used as part of a deliberate charade; a charade to deflect suspicion from the 2nd and 4th defendants, for who would suspect that a young couple and their small child were carrying a vast quantity of cocaine?
I am satisfied that, regrettably, this was the case. The 2nd and 4th defendants used their child in a most cynical manner. I do not intend, however, to increase the sentences of either the 2nd or the 4th defendant because of that. The only comment I would make is that their wicked manipulation of the child will be an obvious burden to them for the rest of their lives.
When it comes to determining the length of all of the defendants’ sentences, I am bound to follow the guidelines set out by the Court of Appeal on these matters, and in particular the decision of the Court of Appeal in respect of a man called Abdallah Anwar Abbas. I have no doubt whatsoever that Mr Oderberg and Mr Yu will have spoken to all defendants about the ramifications of that decision.
For the conspirators - that is, the 1st, 2nd and 6th defendants - the quantity of cocaine, over 500 kilograms of it, takes the offence outside the upper level of guideline sentences and into the realm of their sentences being at my discretion beyond a starting point sentence of 30 years’ imprisonment.
This morning Mr Oderberg advanced the argument that my starting point for all three of the conspirators should be a sentence of 35 years’ imprisonment, and he cited legal authority for that proposition. I have to say, with the greatest of respect to Mr Oderberg, his argument, to my mind, ignored the international aspect of this case, which is an aggravating factor. It also ignores the fact that the 6th defendant’s role was clearly more extensive than the 1st and 2nd defendants’ was.
I am quite satisfied that when a judge is considering sentences in excess of 30 years, the enhancements for these matters should not be large, but nevertheless they should be significant. Though Mr Oderberg suggested 35 years as a starting point sentence, I would, in the case of the 1st, 2nd and 6th defendants, add an enhancement of 2 years for the international aspect, and in the 6th defendant’s case alone, an additional enhancement of 1 year to reflect his greater involvement in the enterprise, which means that the starting point sentence for the 6th defendant is one of 38 years’ imprisonment; and for the 1st and 2nd defendants, I take a starting point of 37 years’ imprisonment.
A one-third discount is given for their guilty pleas. This means that it reduces the sentences of the 1st and 2nd defendants - that is, Heric Rivas and Josue Mario Bravo Galindo - to ones of 24 years and 8 months’ imprisonment, and in the 6th defendant’s case, the 6th defendant being Jose Duarte Gomez, his sentence is one of 25 years and 4 months’ imprisonment.
In the case of the 5th defendant, Elmer Murillo Medina, here I am concerned only with one count, the 4th count, for trafficking in 5.98 kilograms of a mixture containing 4.51 kilograms of cocaine. His offence falls within the upper band of sentencing ranges identified by the Court of Appeal in the case of the man Abbas, and to my mind merits the starting point sentence of 26 years’ imprisonment. Again, he is entitled to the benefit of a one-third discount for his guilty plea, and that means that his sentence is one of 17 years and 4 months’ imprisonment.
The 3rd defendant pleaded guilty to Count 4, which related to trafficking in 5.98 kilograms of a mixture with an active cocaine content of 4.51 kilograms. She also pleaded guilty to Count 7, which related to the 49.72 kilograms of mixture containing 40.11 kilograms of cocaine found in the Nob Hill flat. She is the only person convicted of the 7th count, as the 2nd defendant’s plea of not guilty to it lies on the court’s file pursuant to an application by the prosecution, and the 4th defendant was acquitted of this count by the jury at her trial. Again following the case of the man Abbas, the appropriate starting point for the offence covered by the 4th count is one of 26 years’ imprisonment, and for the 7th count, the large quantity of cocaine involved is deserving of at least 30 years’ imprisonment after trial as it falls into the discretionary band identified in the Abbas case.
In the 3rd defendant’s case I take 30 years as the starting point sentence in respect of her offence covered in the 7th count. I add 1 year’s enhancement to both offences, or rather to both starting points, to reflect the international aspect of this case. I regard her activities in respect of both counts to which she has pleaded guilty as being representative of a continuous course of criminal conduct, and because of that, she will serve concurrent sentences in respect of her two offences.
A one-third discount is given to the 3rd defendant, Talina Elena Bazua Tapia, to reflect her guilty pleas. This means that her sentence on the 4th count is one of 18 years’ imprisonment, and her sentence in respect of Count 7 is one of 20 years and 8 months’ imprisonment. As I direct that she is to serve her sentences concurrently, her total period of imprisonment for her two offences is one of 20 years and 8 months.
Finally, I turn to the case of the 4th defendant, Talina Prieto Vazquez. She was found guilty by the jury on Count 5, which related to 5.98 kilograms of a mixture containing 4.6 kilograms of cocaine. This takes the level of her sentence into the upper band identified in the Abbas case. I take a starting point sentence in her case of 26 years’ imprisonment, and add to it 1 year for the international aspect, making a total starting point sentence of 27 years. For the reasons already explained, there can be no discount in sentence. She must serve the full 27 years of imprisonment.