The arrest produced three charges:
(1) Trafficking in dangerous drugs on that day at the premises in a mixture weighing 26,360 grammes of a solid containing 14,300 grammes of cocaine;
(2) Possession of a dangerous drug, namely 0.75 grammes of a solid containing 0.63 grammes of cocaine; and
(3) Trafficking in a dangerous drug, namely 343.18 grammes of a solid containing 223.67 grammes of cocaine.
The allegation in charges (1) and (3) included an allegation that she trafficked together with with Jessenia Correa Navarro.
Ms Navarro was also charged with Charge (1) and (3).
The procedural history so far as it concerns Ms Ramirez is somewhat complex but, as will shortly be seen, has a profound effect on the disposition of this case.
On 19 August 2019, Ms Ramirez pleaded guilty in committal proceedings to all three charges to which reference has just been made. She was committed for sentence to this court. It is appropriate to note that Ms Navarro also pleaded guilty to the charges she faced and was also committed to this court for sentence.
On 26 February 2021, Ms Ramirez applied to this court to reverse her plea of guilty in relation to Charges (1) and (3). On that date, after a hearing, Justice Alex Lee permitted her to reverse her plea. In consequence, an indictment was filed on 4 March 2021 containing Charges (1) and (3). That indictment also contained a charge of conspiracy to trafficking in dangerous drugs, which was subsequently dropped.
Ms Ramirez’s case came before this court for trial on Charges (1) and (3). That trial commenced on 2 November 2021. A jury was empanelled and ultimately discharged. The reason for the discharge does not a matter greatly for the purpose of sentences but there had been a series of unexpected but proper submissions which did not involve the jury. I determined in the end to discharge that particular jury because I did not think it was appropriate that they be waiting around for possibly days on end and not engaged in hearing evidence.
On 4 November 2021, the count encapsulating Charge (3) that is, trafficking in a dangerous drug, namely 343.18 grammes of a solid containing 223.67 grammes of cocaine was put to Ms Ramirez again and she pleaded guilty to that charge and was convicted thereof. The trial in relation to Charge (1) continued with a fresh jury. At the end of the prosecution case, I held that Ms Ramirez had no case to answer and I directed the jury to find her not guilty on that basis. She was acquitted and discharged.
Accordingly, Ms Ramirez falls to be sentenced in relation to Charge (2), possession of the dangerous drug containing 0.75 grammes of a solid containing 0.63 grammes of cocaine, to which she pleaded guilty at committal, and Charge (3), trafficking in a dangerous drug, that is, 343.18 grammes of a solid containing 223.67 grammes of cocaine, to which she pleaded guilty on 4 November 2021.
In parallel with all of this, Lee J directed that the sentencing process for Ms Navarro be adjourned and dealt with following the trial of Ms Ramirez.
On 18 November 2021, both Ms Ramirez and Ms Navarro came before me for sentence. Ms Navarro told the court that she wished to discharge her lawyers and applied to the court for permission to reverse her plea. Notwithstanding the direction of Lee J, I ordered that Ms Navarro’s case be adjourned to 1 December 2021, in which time the application to reverse her plea of guilty or, if that was not to proceed, the completion of the sentencing procedures, be heard for Ms Navarro. While I was in respectful agreement with the order of Lee J that they be sentenced together, I determined to continue with the sentencing process for Ms Ramirez for two reasons. These reasons were: (1) it was just that Ms Ramirez knew her fate without delay and, allied to that, (2) depending on the outcome of the proceedings for Ms Navarro on 1 December 2021, it could be some time before her sentencing procedures could be heard if the court was to accede to her application to reverse her plea, assuming any such sentencing procedures were required.
Following that, a summary of facts and the essence of the antecedents report was put to Ms Ramirez and she admitted the summary of facts and accepted the accuracy of the antecedents report. I heard submissions from counsel for Ms Ramirez in mitigation of penalty. I adjourned the announcement of sentence for Ms Ramirez to today.
Facts of the case
The facts admitted by Ms Ramirez are that on 2 March 2018, at around 4.52 pm, the accused was seen exiting the premises in the company of Jessenia Correa Navarro. Ms Navarro was seen to secure the door of the premises using a padlock on the iron grille.
A member of the Customs & Excise Service intercepted Ms Ramirez. At the time of interception, she was carrying a rucksack and the rucksack itself contained a handbag. Inside the bag was a set of two keys and a packet of cocaine, which was later analysed to contain 0.75 grammes of a solid containing 0.63 grammes of cocaine.
One of the keys found in the possession of the accused could open the padlock securing the door to the premises. Inside the premises, it was found that there was a metal box secured by padlock. The other key in the possession of the accused was able to unlock that padlock.
Inside the metal box was three Ziploc bags which contained cocaine. The contents of the Ziploc bags were analysed and found to contain 343.18 grammes of a solid containing 223 grammes of cocaine. The metal box also contained an electronic scale, gloves and further Ziploc bags.
In March 2018, the price per gramme of cocaine in Hong Kong was just over $1,000 and, if that amount seized from the metal box was sold on a per gramme basis, the value of the cocaine was just over $346,000.
Background and mitigation
Ms Ramirez is 35 years of age. She is of Colombian nationality and holds a Colombian passport. Apart from a conviction for overstaying, in which she was sentenced to one day of imprisonment, she is a person of otherwise clear record in Hong Kong and I propose to treat her as a person of clear record.
Ms Ramirez came to Hong Kong from Colombia at the invitation of Ms Navarro. Ms Navarro had arrived shortly before her. Both of them had been friends in Colombia. When Ms Ramirez left Colombia, she had been in an abusive relationship, leading to two unsuccessful suicide attempts. She also has a child aged 8.
Prior to her coming to Hong Kong, she had lived and worked in Medellin. She had worked as a waitress and a beautician.
Counsel for Ms Ramirez submitted that when she came to Hong Kong, she took up the habit of consuming cocaine. That, he pointed out, is consistent with the urine analysis traditionally performed by the Commissioner for Correctional Services when a person is remanded in custody.
Sentencing principles
Starting point: trafficking
The community of Hong Kong and, as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to cocaine. This particular drugs has terrible consequences for the individual. Ridding oneself of an addiction to cocaine is, to say the least, an arduous process and sadly, history demonstrates that attempts are often fraught with instances of disappointment.
However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who have been addicted to these drugs. The view of the community and the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.
To reflect the serious view that the courts and the community take in relation to trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of drug trafficking, including that of cocaine, which, of course, is the subject of the charge in this case. The maximum penalty under the law is a fine of $5 million or life imprisonment.
Source of the guidelines in relation to trafficking in cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. In the Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in R v Lau Tak Ming & Ors (above) are appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The guidelines set by our courts for trafficking in 223.67 grammes of cocaine place the case in the sentencing bracket of quantities between 200 grammes and 400 grammes and the relevant sentencing range is 12 to 15 years’ imprisonment. That sentence is the one which would be imposed following a conviction after trial.
The possession of cocaine is itself regarded as a serious matter. For the quantities involved in the possession charge in the present case, would result in a sentence, where there had been a conviction after trial, of somewhere of the order of 12 to 18 months’ imprisonment.
Discount for plea of guilty
The well-accepted sentencing principles recognise that, where an accused person pleads guilty at the earliest practical moment, a discount from the appropriate starting point of 33 per cent would be applicable. Such a discount would be appropriate in relation to the charge alleging possession of cocaine.
The position is different in relation to the discount which might be accorded to a person who pleads guilty at a later stage. In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the Court of Appeal conducted a principal review of the nature of the discount from the sentence appropriate where a person is convicted after trial to be accorded to a person who pleads guilty. As noted already, the Court of Appeal held that, where a person pleads guilty at the earliest practicable opportunity, a discount of 33 per cent would ordinarily be accorded to that person.
The court also considered two other scenarios. One scenario is where the accused had been committed for trial to this court and then pleaded guilty before the matter was listed for court. The court suggested that in that circumstance, a discount of 25 per cent from the appropriate sentence for a conviction after trial would be appropriate. The second scenario mentioned in Ngo Van Nam (above) was a plea of guilty on the first day of trial. The suggested discount for such a situation was 20 per cent.
The Court of Appeal also indicated that the sentencing judge has an overriding discretion in determining whether to accord some form of discount and, what that discount might be. On no account did the court ever contemplate the combination of circumstance which have occurred in the present case. It is no understatement to say that that is hardly surprising. The determination of what the appropriate discount is in the present situation must be derived by use of analogy to circumstances contemplated by the Court of Appeal and a consideration of the underlying purpose for the discount. So far as the underlying purpose for the discount is concerned, the principal focus of the Court of Appeal was that the discount reflected a pragmatic concern to encourage an early plea of guilty to reduce pressure on court time and resources. The court also held that the issue of remorse was subsumed in the suggested discounts. To be clear, expressions of remorse have played no part in the sentencing process in the present case.
Role of the accused
It is critical to determine the role of the accused in the crime (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974. In this case, the Court of Appeal recognised that although the analytical starting point of the sentencing guidelines for drugs such as cocaine start upon the premise of sentencing for a courier or storekeeper, there is a range of culpability even if the trafficker could be characterised as a courier. The Court of Appeal held that an accurate characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence the accused above or below the mathematical application of the relevant guideline. The Court of Appeal rejected the sentencing approach in trafficking in dangerous drugs cases where the sentence was based solely on narcotic content.
Application of sentencing principles
As I have already indicated, the usual sentence for a conviction after trial on a charge of possession of this level of cocaine is something of the order of 12 months to 18 months.
In relation to the trafficking charge, on the basis of the narcotic content of 223.67 grammes of cocaine, an arithmetic calculation based on the sentencing guidelines would suggest a starting point of 12 years and 6 months for a sentence for a conviction after trial.
There is precious little evidence either in the admitted facts or in the evidence which predated the conclusion of the trial as to the role of the accused with respect to the 223.67 grammes of cocaine. She pleaded guilty to jointly trafficking in this joint enterprise with Ms Navarro. I have no evidence before me as to the impact of the joint enterprise. Counsel for Ms Ramirez suggested that her role was that of custodian. I confess to reservations about that, but, whatever my reservations, any alternative which is both realistic and provable role would make no difference to the starting point. In relation to this cocaine in this specific charge, there is no basis for saying that it has an international element such that it would justify going above the arithmetic calculation. Had the sentencing exercise involved the 14,300 grammes of cocaine, there is at least a respectable argument that there was an international element of the kind which would have justified a higher sentence on that account. I think, in the final analysis, a starting point of 12 years and 6 months is appropriate for this quantity of cocaine.
Counsel for Ms Ramirez has suggested in his submissions to Lee J about the reversal of plea. The principal focus was on the charge alleging the much larger quantity of cocaine. That is, 26 kilogrammes of a solid containing 14 kilogrammes of cocaine. That is hardly surprising. Given where a conviction after trial on that count would expose Ms Ramirez to a sentence approaching 30 years, perhaps, the submission that the trafficking charge of 223.67 grammes of cocaine was of lesser importance in that context has some force.
Expressions of remorse have played no part in the submissions on behalf of Ms Ramirez. The plea predated by a few days the determination that Ms Ramirez had no case to answer on the larger charge. In a sense, no additional time was wasted trying the charge involving the 223.67 grammes of cocaine. In a sense, the plea for the trafficking in that quantity of cocaine was on the first day of trial, although there is an air of unreality about that. Any analysis is ultimately imperfect and, in the exercise of my discretion, I have decided to impose a discount of 22 per cent. If that is considered merciful, an element of mercy is no bad thing in the sentencing process.
I turn now to the consideration of information received today in the form of a letter from Father John Wotherspoon, who conducts a programme to attempt to discourage persons from, amongst places, South America, to traffic in dangerous drugs to Hong Kong.
I have a letter, which I have admitted as exhibit D1, in which he tells the court that Ms Ramirez has joined his programme and is an active member. That letter was dated 22 June 2020 and we are now well into 2021. The rationale for sentencing - or reduction of sentence, more accurately - where somebody has become a member of Father John’s programme is to recognise that this is post-conviction conduct which is admirable and is inconsistent with the kind of person who emerges from the conviction.
Here, what this woman has done is joined a chorus of voices. She is not a lone voice. She is not in a position to prove, and I am not in a position to be satisfied, that her efforts have had an effect on the cocaine trade from South America. If that was the criteria for granting some form of recognition, then I would describe that as a self-fulfilling design for failure. In short, on that basis, nobody could ever expect to receive a discount.
In my opinion, a discount that I can give could only be regarded as a down payment, because, as Ms Ramirez will perfectly understand, she is going to be in prison for some time yet and if she continues with the programme and she makes this known to the authorities, then there is a respectable argument that she might receive a further discount. The very best I can do is, as I stress, a down payment, and that will be a reduction from the sentence she would otherwise have received, of 3 months.
In the grand scheme of things, the possession of such amount of cocaine in the present case pales into insignificance with the other charge. The sentence that she should receive is 18 months and that is reduced by 33 per cent. That equals 12 months. Had the cocaine in the possession charge been added to that in the trafficking charge, it would have made no difference to sentence.
Accused present. Appearances as before.