The estimated street value of the dangerous drugs you have admitted to attempting to traffic in was HK$28,314,355.
The Summary of Facts has been read out to you on a previous occasion when you confirmed they represented the basis of your plea although that basis is now altered as you have also given evidence in trial against one of your co-defendants and been the subject of cross-examination. You are aware and accept that I may take into account everything I have learnt of this enterprise at trial, not least your own evidence upon the point.
You were involved in a scheme to import these dangerous drugs into Hong Kong by secreting them within a shipping container. You say you did not become involved until after you had landed in Hong Kong and just before the container was due to arrive. You have not attached yourself to the early arrangements made in Colombia. You were living in the United States and in gainful employment at that time.
However, you have said that you were recruited by a man known as Mono who was your nephew. He appears to have been directing operations from the mainland and acting as a conduit to the Colombian element of this enterprise. He put you in touch with Hui Ka-lok who was your liaison in Hong Kong. The two of you purchased the equipment needed to recover the drugs from the container doors and found a warehouse suitable to house the container whilst that recovery was carried out.
The drugs which were secreted within the door frame of the container were discovered by Customs and Excise before the container was collected at Kwai Chung. An operation was carried out by Customs and Excise in order to make a controlled delivery using dummy drugs. That is why you were charged with attempting to traffic in dangerous drugs and not the substantive offence or conspiracy to traffic, which Hui Ka-lok faced in trial. The container was taken to a rented warehouse where you, Hui and Hu were observed on CCTV to be examining the edges of the doors of the container which had previously been found to have held the drugs.
You accepted in evidence that you used the equipment you had purchased to open a container door and had seen what you believed to be the hidden drugs. However, you were nervous of the background to the arrival of the container and you inspected it for interference. You found a hidden camera and believed that the police were onto you. But nevertheless, you carried on trying to obtain the hidden drugs at the urging of Hui Ka-lok. It was clear in evidence that you felt badly let down by Hui Ka-lok, but I do not believe that that was your motivation for giving evidence.
All of the events on 27 August 2018 had been the subject of observation by Customs and Excise. At the point that they saw sparks fly within the warehouse, they decided to close in. You admitted in evidence that you were not wholly truthful upon arrest or in interview. You said you were motivated to protect your wife and to protect yourself in the hope that you might be released or, perhaps, receive a lighter sentence. I found your evidence to be truthful in that respect.
These events occurred in 2018 and it has taken some three years for the matter to come to trial. And you are now 55 years of age.
You are a Colombian national of Spanish descent and have worked in the construction industry in several countries although by 2018, you were a green card holder in the United States of America and employed in legitimate work.
Mr Sadhwani tells me that you are a family man with a wife and two adult daughters and that you are of good character in Colombia and Spain. He urges that upon me in support of the submission that you have had no dealings whatsoever with the world of drugs. These events occurred purely by reason of your close connection to Mono.
Mr Sadhwani has mentioned your health and has provided a medical report to show that you suffered from Bell’s palsy when first remanded in prison, from which you have fortunately recovered, but which must have been a scary experience and one which could recur and is made more difficult by the fact that you are far from home without the ability to receive visits from your loved ones.
For trafficking in 18,692 grammes of cocaine, under the guidelines in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, the starting point for sentence after trial attracts a sentence of 30 years for 15,000 grammes, after which the sentence is at the discretion of the court. On the basis of the current guidelines, if you were a courier, the starting point after trial would be in the order of 31 years and 3 months if the court applied the mathematical model applicable to the guideline sentence for trafficking in 15,000 grammes of dangerous drugs.
HKSAR v Herry Jane Yusuph, CACC 93/2019, suggests that the current sentencing guidelines were originally designed to take into account those defendants who fell into the category of courier or storekeeper. Your activities fall into neither of those categories. But is your role akin to those or not? If the court were to give you the benefit of the doubt, you were an integral part of the team only in Hong Kong and China, if not Colombia.
On your own admissions, you helped Hui Ka-lok choose the location of the warehouse and you were the one to identify the equipment required to recover the dangerous drugs. You were the member of the team who had the skillset to recover the drugs but you told the jury that you were not interested in the onward movement of the drugs, nor were you to receive any reward.
I am going to assess you as a necessary element in the trafficking-drugs operation but not necessarily anyone who had a hand in the control of them. I am prepared to give you the benefit of the doubt and assess your role as akin to a storekeeper who keeps drugs safe for onward distribution. But because of the nature of this operation, I consider you were carrying out a commercial rather than retail role.
You are a responsible member of an international drug-trafficking team even if that was limited to Hong Kong. I consider the starting point after trial therefore appropriate at 31 years and 3 months.
There is the matter of the importation of these drugs in which you were involved. That is an aggravating factor for which you will receive an additional sentence of 2 years. That makes 33 years 3 months.
I consider the situation regarding your health to be one that I can mark, albeit in a small way as you will have excellent medical support in Hong Kong, but there will be no support from your family if you are unwell once more. And for that I will deduct 1 year and 3 months from the above sentence, which makes 32 years.
You will, in any event, receive a full one-third discount for your plea at the first opportunity, and that discount will be enhanced to reflect the assistance you gave and the manner in which you gave evidence before the jury. I have no doubt that without that evidence, Hui Ka-lok would not have been convicted.
And, Mr Ochoa, you will go to prison for 16 years.