The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 0.64 kilogrammes of a solid containing 0.52 kilogrammes of cocaine.
The defendant is a Columbian male aged 70 and holds an American passport. He arrived in Hong Kong in the afternoon of 18 January 2014 on a flight from Brazil via Doha.
He was seen by Narcotics Bureau officers in the lobby of the Kimberly Hotel and when his suitcase was searched the drugs were found concealed inside foam pads in his suitcase.
The defendant was subsequently interviewed on video and he basically stated that he came to Hong Kong to buy clothes for his business in Columbia. This was the second trip to Hong Kong. He admitted that the black suitcase seized from him was bought by him in Bogota about a month prior to his arrest.
The defendant, in the video, admitted that the drugs were seized from inside his baggage but claimed he did not know anything about them. The drugs have a street value in Hong Kong of about $837,120.
As I said, the defendant is aged 70 and he has a clear record in Hong Kong. He is an American citizen, although born in Columbia, and as Mr Boyton has submitted in mitigation, he has a daughter living in the United States of America. The defendant, himself, lived in America in New Jersey for 18 years and worked as a cook. He retired and returned to Columbia where he subsequently opened a clothing store.
As in most cases of drug trafficking, Mr Boyton submitted that the defendant was tempted to do this, commit this crime, because he was suffering from medical ailments, particularly that he is suspected to have prostate cancer and they were going to do a biopsy on him. However, be that as it may, it is not mitigation.
The fact is that Hong Kong not only suffers from drug trafficking committed by Hong Kong people, but we also see an increasing number of foreign travellers from the South American continent and the African continent, bringing drugs into Hong Kong because of the temptation of easy money.
A message has to be sent out to the world that Hong Kong will view these importation of drugs into Hong Kong very seriously and no matter how old or young, the sentences will be severe. As Mr Boyton correctly pointed out, the Court of Appeal has laid down guidelines for trafficking in heroin hydrochloride in the case of The Queen v Lau Tak Ming in 1992 and in the case of The Attorney-General v Pedro Nel Rojas [1994]. It has been said that the guidelines in Lau Tak Ming would apply equally to the drugs in the present charge, which is cocaine.
The Lau Tak Ming guidelines stipulated that, as a general guideline, for trafficking in between 400 to 600 grammes of heroin hydrochloride would merit a sentence of between 15 to 20 years’ imprisonment.
In the recent case of the HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal had laid down further guidelines for cocaine and said that for trafficking in heroin or cocaine of between 600 to 1200 grammes, would merit a sentence of 20 to 23 years’ imprisonment. And that if there is aggravating factor, as in this case, where an international element was involved, then for amounts over 1 kilogramme, enhancement would not be less than 2 years’ imprisonment.
In this case, the amount is 520 grammes and taking into account the guidelines in Lau Tak Ming, that would give us a starting point of 17½ years’ imprisonment. Taking into account the aggravating feature in this case where the international importation of this into Hong Kong is concerned, taking into account the age of the defendant, I would increase the sentence by 1 year. So that will give us 18½ years.
The defendant has pleaded guilty in the lower court, and that means it is a sign of remorse and also saving of the court’s time. So he is entitled to one-third off. So that means he is sentenced to 12 years and 4 months.
Mr Boyton has pointed out that he has medical conditions which relates to his leg and prostate and that will be taken care of in the Correctional Services, so I am not worried about that.