HKSAR v. Rodolfo Bardales Tobar

HCCC 445/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 445 OF 2013

(arising from TWCC 1068/2013)

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REASONS FOR SENTENCE
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1.In the afternoon of 17 April 2013, the defendant, a national from El Salvador, arrived at Hong Kong International Airport. He had travelled from San Miguel, El Salvador, via Tegucigalpa, Honduras, Panama City, Panama and Amsterdam, Netherlands. He was stopped at customs clearance and a briefcase he was pulling was x‑rayed and searched. A large quantity of cocaine was found in a concealed compartment of the briefcase.

2.He was arrested and cautioned for trafficking in dangerous drugs.  He was asked what was inside the briefcase and he said he did not know.  He was asked if he would cooperate with customs officers and participate in a controlled delivery operation.  He agreed and he was taken to the Cosco Hotel where he had been booked to stay.  The next day on 18 April 2013, after arrangements had been made with a female over a mobile telephone that the defendant had on him at the time of his arrest, a male known as Perez Osorio Luis Fernando came to the hotel room and collected from him the briefcase containing the drugs.  He was arrested and charged for drug trafficking.  He was eventually tried and convicted after trial before a judge and jury.

3.In a cautioned interview the defendant explained that he was a fisherman in El Salvador earning about US$200 per month. He was not married but had been cohabitating with a woman with whom he had two children.  He was in debt in the sum of US$1,500.

4.About six months prior to his arrest, he meet a person known as Juan Carlos who offered to pay him US$3,500 for bringing a suitcase to Amsterdam or US$4,000 to Hong Kong.  Subsequently, he agreed to bring the suitcase to Hong Kong.  He went to San Miguel where he took a bus to Tegucigalpa and from there a plane to Panama and then to Amsterdam bound for Hong Kong.  He said he was given the suitcase in San Miguel and on arriving in Tegucigalpa he met a man who gave him air tickets to Hong Kong, a sim card and a hotel reservation in Hong Kong for three days.  He admitted that he knew the suitcase contained cocaine.  He said he brought the drugs to Hong Kong because he wanted to repay his debts and his youngest child was sick and he needed the money.

5.The drugs found in the suitcase consisted of 1.07 kg of a powder containing 0.81 kg of cocaine.  The market retail value of the drugs at the time that they were seized was estimated to be HK$1,094,610.

6.Mr Hanif Mughal, counsel for the defendant, in mitigation has submitted that the defendant is a person of good character who out of financial desperation and personal vulnerability got involved with the drug syndicate behind the importation of these drugs.  The prosecution have confirmed that the defendant does not have any prior convictions in El Salvador and obviously none in Hong Kong.  He has submitted two letters to the court where he has expressed his remorse and regret for his involvement in this crime and accepts that he will be appropriately punished for it. 

7.The defendant cooperated with the customs officers and participated in a controlled delivery.  As I have already noted, the operation resulted in the arrest of another person who was eventually tried and convicted for drug trafficking.  The defendant did not give evidence at the trial.  The operation involved him waiting in a hotel room for two days and making arrangements over the telephone for the collection of the drugs.  At the time of the collection he had to deal with the other person in the handing over of the suitcase while customs officers laid in wait.  I have taken into account that he was fully cooperative and assisted the customs officers in the controlled delivery.  Mr Mughal has referred my attention to the Court of Appeal decision of HKSAR v Kay Sik Hong Billy [2014] 1 HKLRD 812 in relation to the range of discount that a defendant was entitled to receive from the starting point for the assistance he or she has given to the authorities.  I agree that the cooperation of the defendant in the controlled delivery is deserving of a discount from the starting point. 

8.I have assessed the defendant as someone who was preyed upon by an international drug syndicate because of his personal and financial circumstances.  In other words, I do not consider him to be a member of the drug syndicate but someone recruited to transport the drugs for them.  Whilst the distinction may be slight given the range of tariff that is fixed for trafficking in the quantity of drugs of this type, it still may mean a lot to someone to be treated slightly more lenient than they otherwise would be if not for their personal circumstances and the circumstances that led them to commit the crime.  If it can be shown to the court’s satisfaction that the person was not a member of the syndicate or a career criminal and that he or she as genuinely a person who was used or taken advantage of by a drug syndicate, then that is a matter that can be taken into account even though the impact on sentence may be slight.  It nevertheless allows a sentencing court to work within the band of the tariffs fixed and impose a sentence at the lower end in a case of this type. 

9.The defendant pleaded guilty at the earliest opportunity and for that he should be given the customary one third discount to his sentence.  I shall take into account his cooperation and participation in the controlled delivery as well as his personal circumstances and the circumstances that led him to commit this crime.  The defendant clearly had the backing of a criminal syndicate that has sought to bring drugs into Hong Kong.  The guideline case of R v Lau Tak Ming [1990] 2 HKLR 370 provides for a sentence of a term of imprisonment of 21 years after trial for trafficking in 0.81 kg of cocaine.  On the authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 and HKSAR v da Silva [2010] 5 HKLRD 576, where there is an international element, as evidenced in this case by the importation of drugs into Hong Kong and the circumstances by which it was done, a sentence is subject to enhancement to reflect this aggravating factor.  The defendant’s sentence will therefore be increased by 1 year.  

10.Accordingly, the starting point after trial is 22 years’ imprisonment which I will reduce by 40% taking into account the one third discount of the plea of guilty and his cooperation and personal circumstances.  The defendant is therefore sentenced 13 years and 2 months’ imprisonment.

Mr John Marray, counsel on fiat instructed by the Department of Justice,   for the HKSAR

Mr Hanif Mughal, counsel instructed by Messrs Leung, Tam & Wong, assigned by the Director of Legal Aid, for the defendant