HKSAR v. Pacaya Tapullima Jose Abel

HCCC 210/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 210 OF 2014

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REASONS FOR SENTENCE

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Sentence

1.On 16 May 2014, in the Magistrate’s Court, the defendant pleaded guilty to trafficking in dangerous drugs.  The offence occurred when he sought to enter Hong Kong on 2 September 2013 with a large quantity of cocaine which was hidden in 2 suitcases that accompanied him.  As a result of the seriousness of the offence he was committed to this Court for sentence.

2.This is yet another drug trafficking case involving a national from Latin America attempting to bring drugs into Hong Kong.  In recent times there has been a large spate of these cases before the Hong Kong courts.  Whether the persons caught are drug syndicate members or vulnerable couriers is hard to tell.  Little, if any credible or reliable information about the individual concern is put before the courts and in any event our sentencing laws do not differentiate between the career criminal and the desperate lawbreaker.  Maybe it is time to take into account the circumstances of the offender and the circumstances that led him to commit the crime when determining an appropriate form of punishment for what he has done.  It should be borne in mind that the leading guideline case on sentencing for trafficking in dangerous drugs, R v Lau Tak Ming [1990] 2 HKLR 370, provides that a sentencing judge may, with respect to the suggested bands of imprisonment for the narcotic content of the drugs involved in the offence, properly take into account various matters, including the degree of involvement of the offender and his previous history of narcotic offences and matters of mitigation which may have been advanced on his behalf.

3.What is apparent is that Hong Kong is under siege by the drug cartels of Latin America through the importation of drugs which mainly consists of cocaine.  This is evident by the number of drug cases before the Hong Kong courts with a Latin American connection.  The problem has become serious, and it needs to be acknowledged and addressed.  Far greater effort should be made in the investigation of these cases to identify the ringleaders and organisers in order to bring the major miscreants to justice.  I do not know what efforts are being made to coordinate law enforcement action against the drug syndicates responsible for the importation of drugs into Hong Kong, but that is where the focus should be by the responsible investigatory bodies. Dealing with the offenders who bring the drugs into Hong Kong is one solitary aspect of the problem and goes nowhere near to striking at the heart of it. Regretfully, there appears to be an endless number of people who because of their circumstances and plight are preyed upon by members of the drug syndicates, and who foolishly agree to act as drug couriers for little financial reward but at a huge cost to themselves when they are caught.

4.The defendant in this case is a 28-year-old Peruvian male.  As is typical of the route taken by drug couriers from Latin America, the defendant came to Hong Kong from Sao Paolo, Brazil.  He was given two suitcases which contained 38 packets, consisting of a total of 1,464.17 grammes of a solid containing 1,156.16 grammes of cocaine.  The drugs have an estimated market retail value of HK$1,594,481.13.  The defendant said he was promised a reward of US$5,000 for delivering the two suitcases and that payment would be made when he returned to Lima, Peru.  He said he took the job because he needed money to pay for his mother’s surgery.  I am in a difficult position to assess whether or not this is true.  In the antecedent statement of the defendant prepared for the Court, I am told that he has no prior criminal record in Hong Kong but that is of no assistance whatsoever. Obviously, a person who comes here for the first time would have a clear record. What I need to know, as is the case with any foreign offender, is his personal particulars and background, and whether he has a criminal record in his home country.  A sentencing court needs to be provided with all relevant information about the case and the offender, and the relevant authorities should use their best endeavours to get the necessary information not only for the purpose of dealing with the case before the courts but for further investigation of the case to identify and deal with the drug syndicate members both here and, in particular, abroad where the syndicate operates.  Where necessary there needs to be active participation by the Hong Kong authorities in a coordinated international effort in dealing with the drug syndicates of Latin America, and the rest of the world for that matter.  I can only urge that this be done; otherwise our courts will continue to deal with large importation drug cases, as it does currently on almost a daily basis.

5.It is apparent to me that when the defendant was apprehended he cooperated with the authorities and was forthcoming about his role and wrongdoing.  He was vague about the persons he dealt with and the arrangements made for the importation of the drugs but as explained on his behalf he was kept in the dark by those persons who arranged for him to bring the drugs into Hong Kong.

6.The defendant comes from a poor family in Peru. He was educated to secondary school level.  He is the eldest of ten siblings and has worked at a market stall that the family maintains.  He has submitted a personal letter to me in which he expresses his remorse and regret for what he has done and he accepts that he will be punished for it.  Counsel for the defendant informed me that the defendant has no prior reward, in Peru and he is not a member of a gang.  I am also informed that prior to this occasion he was never travelled out of Peru.  I have carefully assessed the material before me and I have concluded that the defendant is a person who out of desperation allowed himself to be used by the drug syndicate involved.  I accept that he was not a member of the syndicate or someone who lives a life of crime. However, his role as a courier was vital to the importation of the drugs into Hong Kong. 

7.I now turn to sentence the defendant in this case.  The guideline case of Lau Tak Ming provides for a sentence of a term of imprisonment of 22 years and 9 months after trial for trafficking in 1,156 grammes of cocaine.  I am prepared to fix the term at 21 years in light of the role that he played and the circumstances in which he became involved in this crime. It appears to me that his descent into crime was as a result of his desperation and vulnerability rather than in pursuance of a career. On the authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 andHKSAR v da Silva [2010] 5 HKLRD 576, where there is an international element, as evidenced in this case by the importation of the drugs into Hong Kong, a sentence is subject to enhancement to reflect this aggravating factor.  I have decided not to do so for the same reasons that I have fixed a slightly lower starting point.  Accordingly, I set a starting point for the sentence of 21 years’ imprisonment, which will be reduced by one-third for the defendant’s plea of guilty and he is therefore sentenced to 14 years’ imprisonment.

Postscript

8.It would be remiss of me not to express my concern about the way this case has been handled. I am left sadly with the impression that this is the norm rather than the exception. I was surprised to learn that the Customs officers as would be the normal course contacted the Peruvian Consulate to inform them that one of their nationals had been apprehended for drug trafficking but did not ask for any information about the personal particulars or background of the defendant. I was further surprised to learn that the Customs officers have made no contact with their counterparts or relevant investigatory agencies in Peru or Brazil about this case. It appears that no follow-up investigation either here in Hong Kong or abroad has taken place in relation to this case. There was no controlled delivery of the drugs, notwithstanding the defendant’s cooperation. There was no assessment or evaluation of the information or material seized or known. There was a printout of the defendant's itinerary, setting out the name of the travel agency in Sao Paulo that arranged the airline tickets for the defendant together with contact details. There was a printout of a Hotel booking for Hong Kong, also setting out the name of the booking agency in Sao Paolo as well as contact details. I have been given an application for an order of disposal of exhibits which included not only the two documents that I have mentioned be returned to the defendant but also his mobile phones which I was informed by counsel for the defendant had the contact number of the person who arranged the defendant to act as a courier for the drug syndicate. I am told that the Customs officers did not examine the contact numbers stored on the mobile phones. What astounds me most of all is that vital information has been overlooked and not used for further inquiry or intelligence.

9.I ask that a copy of my reasons for sentence and comments be provided to the Commissioner of Customs and Excise.

Mr Harish Melwaney, Senior Public Prosecutor, of the Department of Justice, for HKSAR

Mr John Patrick Marray, instructed by Tang Wong & Cheung, assigned by DLA, for the defendant