HKSAR v. Sen Santanu and Another

HCCC 98/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 98 OF 2012

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: In relation to the 1st defendant, Sen Santanu, had pleaded guilty on 30 October to the 2nd count of trafficking in a dangerous drug, namely 1,490 millilitres of a mixture of solid and liquid containing 1.07 kilograms of a solid containing 0.62 kilograms of cocaine.

The dangerous drugs were contained in a parcel sent from Brazil in the name of the 2nd defendant. When Customs officers discovered the contents of the parcel were questionable, they arranged for a controlled delivery operation on 2 September 2011.

On that day, the 1st and 2nd defendants attended at the post office and were seen together at 12.15 pm. They both went to sit on a staircase outside the post office, and after a talk, the 1st defendant then left the 2nd defendant sitting on the staircase and went inside the post office. He walked around and then came out again, and then, at 12.25, the 1st defendant went to the mail collection counter number 13 and asked about the parcel.

On being told that he had to provide the correct parcel number, the 1st defendant left the post office, returned to the staircase, where the 2nd defendant was seen to have passed him a sheet of paper. According to the Summary of Facts admitted by the 1st defendant, at that stage the 2nd defendant passed him two sheets of paper, one with the parcel number on it, and the other was a copy of the identity document of the 2nd defendant.

When the 1st defendant went back into the post office to collect the parcel, the 2nd defendant left the staircase and walked outside the post office building. At counter 13, the 1st defendant produced his own identity and the copy of the 2nd defendant’s identity document, which was in fact an Immigration recognisance, and also the correct parcel number, and at 12.33 pm the 1st defendant signed for and collected the parcel.

When the 1st defendant left the post office, he was stopped by Customs officers. He threw the parcel and the copy of the 2nd defendant’s recognisance onto the ground.

Under caution, the 1st defendant did not say anything, and at the same time, the 2nd defendant ran away from the bus stop and was arrested shortly thereafter.

Post-recorded statements were taken from the 1st defendant, and apart from telling the Customs officers his place of residence and the whereabouts of his proof of identity, he did not say anything. The 1st defendant was further interviewed on video on 3 September, and under caution, the 1st defendant said he was indebted in India because of his failed business and that it was the 2nd defendant who asked him to go to collect the parcel, and the 2nd defendant told him that the parcel was a gift from overseas. Outside the post office, he said the 2nd defendant told him he was not feeling well and asked him to collect the parcel, and therefore he did not know the content of the parcel.

The street value of the total amount of dangerous drug in that parcel was in the region of just over HK$1 million.

Subsequently, in subsequent interviews with Customs officers, the defendant admitted that he knew that the parcel contained cocaine, and subsequently made various statements to Customs officers telling Customs officers his role and what he saw at the home of the 2nd defendant.

The 1st defendant subsequently provided the Customs officers with many statements of his and the 2nd defendant’s involvement, and subsequently agreed to give evidence on behalf of the prosecution. He was given immunity from prosecution on the 1st count on condition that he gave full and true evidence for the prosecution in the trial of the 2nd defendant.

As Mr Adams pointed out, he did give evidence in the trial of the 2nd defendant, and was in the witness-box for four days. He was subjected to extensive cross-examination by very experienced counsel, who challenged his credibility, and Mr Adams submitted that on the whole, he came up to proof on his statements.

Mr Adams made a point which is very persuasive. It is that without the evidence of the 1st defendant, the 2nd defendant’s conviction on the 1st count would not have been possible, nor would have Count 1 charge been laid, and it is a fact of life that in this sort of criminal activity, as Mr Adams pointed out, it is frowned upon for anyone in the organisation to offer to give evidence on behalf of the prosecution.

It is something to be encouraged, as many judges have noted that this sort of co‑operation should be rewarded, and so the courts have given large discounts for this kind of co‑operation where a defendant not only supplies information to the authorities but also stands up and gives evidence against a co‑defendant. This is the sort of activity which is encouraged by these courts.

It is true, as Mr Adams pointed out, that the sentencing guidelines for cocaine is actually in the case of Pedro Nel Rojas [1994] 2 HKCLR 69. The Court of Appeal has pointed out that the courts should use the guidelines laid down for heroin in Lau Tak Ming [1990] 2 HKLR 370.

In the present case, in Count 2, to which the 1st defendant had pleaded guilty to, the total amount of cocaine is 620 grammes, which would, under the guidelines, give a starting point of 20 years’ imprisonment.

There is also the element of international importation of the drug which is an aggravating factor, and Mr Adams has correctly pointed out therefore increasing it by 1 year brings the total sentence to 21 years.

Taking into account that the defendant’s co‑operation with the authorities and the nature of his assistance, including giving evidence against the 2nd defendant, undoubtedly his co‑operation should be recognised, and therefore I will give the 1st defendant a 50 per cent discount, reducing the sentence to one of 10 years and 6 months.

So the 1st defendant is sentenced to 10 years and 6 months.

Now, in relation to the 2nd defendant, the 2nd defendant faced a trial before a jury on the 1st count of conspiracy to traffic in a dangerous drug with the 1st defendant and other persons unknown, and also an alternative 2nd count of trafficking in a dangerous drug which is the 620 grammes of cocaine received in a parcel from Brazil.

The jury, after deliberation, convicted the 2nd defendant of the 1st count.

Now, the guidelines of Lau Tak Ming and also Abdallah [2009] 2 HKC 197 really applies to simple couriers. There is not much said in those guidelines about the different roles within an organisation. There is no guidelines for conspiracy to traffic in dangerous drugs. Perhaps a higher court may in the future consider some form of guidelines for traffickers playing different roles.

However, in this case before me, it is clear that the 2nd defendant was not only a courier but was heavily involved in this whole operation. According to the evidence of the 1st defendant, the parcel was received from Brazil in the form of a solution which is put into bottles and declared to be wine, but in effect it is a solution into which cocaine is dissolved in, and as the Government Chemist report had stated, it is very easy to separate the cocaine from the liquid by putting the whole thing in a microwave oven at home and then it becomes solid and the cocaine therefore becomes lumps of cocaine which can then be bashed into powder, and this is exactly the type of operation that the 1st defendant described as having seen the 2nd defendant do at his home, and it is also what the 1st defendant describes is that the 2nd defendant then puts this powder at one stage in a cornflakes box and delivers it.

It is also clear from the 2nd defendant’s mobile phone texts that not only was the 2nd defendant involved in the receipt of the parcel and making the solution -- extracting the cocaine from the liquid, he was also involved in distributing some of these drugs to others in the Lan Kwai Fong area, in Caine Road and Robinson Road.

So having considered all this, I therefore consider that a reasonable sentence in this case, in view of the defendant’s role in this conspiracy, should be one of 25 years’ imprisonment. I can see no mitigating factor in this case, so the 2nd defendant is sent to gaol for 25 years.

Please refer to CACC311/2013 for the relevant appeal(s) to the Court of Appeal.