HKSAR v. CASTILLO ANCHICO JOHANA

HCCC 23/2025

[2025] HKCFI 1566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 23 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap.134, before Magistrate Ms. Minnie Wat and was committed, on 16^th January 2025, to the Court of First Instance for sentence. The defendant confirmed her plea and admission to the Summary of Facts before me, and her conviction is duly recorded.

2.  Particulars of the charge are that she on 25^th October, 2023, at Customs Arrival Hall B, Passenger Terminal Building 1, Hong Kong International Airport, unlawfully trafficked in a dangerous drug, namely 509 grammes of a solid containing 415 grammes of cocaine.

FACTS

3.  The defendant arrived in Hong Kong on a flight from Paris in the evening of 25^th October.  She was refused entry by the Immigration Department and was taken to Customs Arrival Hall B for Customs clearance. 

4.  Customs officers suspected she had concealed dangerous drugs inside her body and brought her to North Lantau Hospital for medical examination.  A foreign object was found inside her vagina, and she was arrested and cautioned for drug trafficking. 

5.  The defendant discharged a plastic packet from her vagina at around 12:18am on 26^th October.  Subsequent laboratory test confirmed it contained all the particularized dangerous drugs, with an estimated street value of HK$504,928.

6.  In her subsequent video recorded interview, the defendant claimed to have travelled alone to Hong Kong from Cali via Bogota and then Paris.  She planned to stay here 7 days. She did not know who paid for her air ticket, who reserved the hotel for her stay, or even the name of the hotel.  She did not know where she would be going during her stay here. 

7.  The defendant’s mobile phone contained, inter alia, messages showing the defendant reporting to someone her whereabouts on her journey to Hong Kong. 

8.  By her admission to the Summary of Facts, the defendant had accepted that she knew the plastic packet concealed in her vagina when she entered Hong Kong contained  dangerous drugs, and that she possessed the drugs for the purpose of unlawfully trafficking in them. 

PREVIOUS CONVICTION

9.  The defendant has no previous convictions in Hong Kong. 

BACKGROUND AND MITIGATION

10.  The defendant was born in April 1970 and is almost 55.  She is holder of a Colombian passport. According to her antecedent statement, she is a single mother to 4 children. She herself has 9 siblings.  She was only educated up to Primary 5 level as money was scarce.  As soon as she was old enough she started to work to help with family finances.  Before she came to Hong Kong, she was self-employed and was cleaning houses and selling fruits in the street to provide for herself and her children.

11.  The defendant was living with two of her children in October 2023, including her youngest son who is disabled and unable to work.  Now that the defendant is going to be incarcerated in Hong Kong, she is concerned about what will happen to the son.

12.  The defendant accepts that her personal circumstances carry little weight in an offence as serious as this, but they do explain how she eventually became an easy target for the drug trafficking masterminds looking for a courier to do their dirty work. Nevertheless, through Ms. Crebbin, the defendant apologized to the people of Hong Kong for what she has done.

SENTENCING

13.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is life imprisonment and a $5 million fine.

14.  The sentencing approach laid down in Herry Jane Yusuph[1], together with the updated sentencing guidelines in Huang Ruifang[2] are adopted as follows.

Step 1: The applicable guideline tariff bands

15.  For 415 grammes of cocaine, the applicable guideline tariff band is “12 to 16 years’ imprisonment”.

Step 2: The defendant’s role and culpability

16.  Based on the boarding passes found on her, the defendant departed Cali and flew to Bogota on 21^st October.  She has a boarding pass for a flight that departed on 22^nd October from Frankfurt to Hong Kong.  She also has one in her name for a flight departing on 23^rd October from Bogota to Hong Kong via Paris, which was the flight she had come on. 

17.  It is not clear when and where she had started to conceal the dangerous drugs in her body.  Be that as it may, it is clear that she was acting in the role of a drug mule, an international courier, and as such her culpability is higher than that of a simple local courier. 

18.  With reference to the case of Lee Ming Ho[3], this international element in the trafficking will be taken as a matter that goes to the role and culpability of the offender when identifying the starting point.

Step 3: The relevant band within the guidelines

19.  Given the substantial quantity of dangerous drugs being trafficked internationally, I find that a proper starting point is that of 16 years, which is 14 months higher than the notional starting point of 14 years 10 months for a simple local courier. 

Step 4: Aggravating factors

20.  Save for the international element which has already been considered, there are no other aggravating factors that would require a further enhancement in sentence. 

Step 5: Mitigating factors

21.  I was informed through a letter from Father Wotherspoon that a nephew of the defendant and her son had recently been killed in her home country, and the defendant wishes to rely on these matters for a reduction in sentence. 

22.  However, as the defendant rightly acknowledged through her counsel, in serious offences such as the present one, an offender’s personal circumstances would normally not warrant a reduction in sentence.

23.  One of the most important considerations of sentencing for drug trafficking cases is the need to deter.  A not insignificant number of the cases that this court has dealt with involved offenders with unfortunate background being enticed into acting as a courier for drugs.  If the personal circumstances of the offender were allowed to be used routinely as a basis for a discount, the deterrent effect will be diluted and may very well lead to the unintended result of encouraging others to follow suit. 

24.  As McWalters J stated clearly in the case of HKSAR v Lkhaijav Bayanmunkh [2012] 2 HKC 233, the court’s position is “…that no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers.”

25.  There may, however, of course, be cases so exceptional that might call for such a reduction, and I find that this is such a case.  I was told that the defendant’s nephew and son were abducted by a paramilitary group in Columbia who tried to force them to join them.  Upon their refusal, they were executed.

26.  Despite her personal tragedy, the defendant had taken part in Father Wotherspoon’s Voice for Prisoners program and had been helpful to the cause. 

27.  For the two factors above, I will reduce the above starting point by 6 months, leading to a sentence of 15 years 6 months.  Upon the usual one-third discount for her guilty plea, the sentence becomes 10 years 4 months. 

Step 6: Totality

28.  Taking a step back, I find this sentence fair, just and balanced in the circumstances. 

FINAL SENTENCE

29.  The defendant is sentenced to 10 years 4 months’ imprisonment after plea.