HKSAR v. YUMBATO HERRERA MARIA ELENA

HCCC 155/2020

[2021] HKCFI 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 155 OF 2020

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, on 6 July 2020, you pleaded guilty before a magistrate at the Eastern Magistracy. As a result of your plea of guilty, you were committed to the Court of First Instance for sentence. You pleaded guilty to an offence of trafficking in dangerous drugs; whereby on 5 May 2019, at Hong Kong International Airport, Chek Lap Kok, Hong Kong, you unlawfully trafficked in 1 kilogramme of a powder containing 841 grammes of cocaine.

You arrived in Hong Kong on 5 May 2019 at the airport coming from Peru via Paris. At about 6.40 pm that day, you passed through the Green Channel of Customs Arrival Hall with a handbag and a suitcase. You were intercepted by the customs officers they found and took your suitcase for x-ray examination whereupon they found a suspicious item in the suitcase. Upon checking the suitcase, they found the front part of the suitcase was abnormally heavy. It was cut open. The 1 kilogramme of powder containing the 841 grammes of cocaine was found in a false compartment of the suitcase.

When asked, “What is this?”, you replied in a language unknown to the officers. You were arrested and cautioned in English and you replied again in a language unknown to the officers. With the assistance of a Spanish interpreter, a preliminary inquiry was conducted with you. You said, under caution, you had no plan as to how to handle the suitcase and a friend had lent you the suitcase for your trip to Hong Kong.

A video-recorded interview was conducted with you on 6 May 2019 with the assistance of the Spanish interpreter and under caution you stated some background. In summary, you said that you lived in Pucallpa, Peru, and had a four-year-old son. You were unemployed at the time of the arrest. You earned about $694 prior to your unemployment, that is, a month, and this is the first time you had travelled abroad.

Upon checking your mobile phone, suspicious WhatsApp messages were found between you and a contact called “Mi bb”, meaning ‘my baby’ in English. In the messages on 20 April 2019, you told “Mi bb” that you worked with illegal things and you took it abroad in a suitcase.

The street value of the drugs seized was HK$989,000.

Through your plea of guilty, you have admitted this charge of trafficking in dangerous drugs.

Mr Kamlesh Sadhwani has mitigated on your behalf and he has submitted to me his written submissions. You are Peruvian and aged 23. You have a clear record and this is your first time travelling abroad. You are married but separated and have a five-year-old son. Your son suffers from bronchial disease. Your parents are farmers aged 63 and 65. You have attained secondary Grade 5 in Peru. Immediately before your arrest, you were unemployed in Peru. You had previously worked in a palm oil company and used to earn around HK$700 a month.

Mr Sadhwani has said quite clearly, as seen in the Summary of Facts, you were a mule and not a mastermind or senior player. You committed this offence due to financial constraints as is seen in the letter you have written to me. Your mother has also written to me a very heart wrenching mitigation letter on your behalf and what she says effectively supports what you have said in your letter.

I understand that people like yourself who are financially constrained are targeted by the drug traffickers to bring the drugs to Hong Kong and the reason is that as a result of your financial constraints this is quick, easy money. It still strikes me today, even though there are many cases where people are in your position, how sad it is that they target youngsters like yourself to bring drugs to Hong Kong, but you know the risk you take if you bring drugs to Hong Kong that you are committing an offence and a serious offence. The sentencing guidelines in Hong Kong is of course, as you know now, very, very stiff for trafficking in dangerous drugs.

As can be seen here as stated by Father Wotherspoon that he is trying to spread the message to those in your home country in Peru to warn people not to bring drugs. There is a letter before me from Father Wotherspoon, dated 2 October 2020, in regards to yourself, saying that you have shared your story on-line warning others not to bring drugs to Hong Kong. Also attached were some matters in Spanish which Mr Sadhwani has assured me is just your story about how you brought drugs to Hong Kong and the fact that you are serving a term of imprisonment. Father Wotherspoon has asked me to give you a deduction of 3 months, as allowed by the Court of Appeal, for your assistance in his campaign.

I am also informed by Father Wotherspoon and Mr Sadhwani that you had attempted to assist the authorities and that was by providing some telephone numbers to those authorities in Peru and describing the person as an African man who gave you the drugs. Father Wotherspoon has asked for a further discount for the assistance to authorities, although it did not lead to an arrest. However, Mr Sadhwani, as properly conceded by him, accepts that this is not of fruitful assistance to authorities.

It is clear that you have, it appears, actively participated in Father Wotherspoon’s anti-drug campaign and it is supported by a letter from Father Wotherspoon of copies of images of websites. Also, I am told by Mr Sadhwani as to your story and the perils of being involved in drug trafficking. I am of the view that the assessment of the value of the applicant’s assistance is something which can be better made by the Executive and not by this court to determine whether any such assistance should be rewarded by the use of the Executive’s power of clemency.

Defendant, the greatest and strongest mitigating factor in your case is your early plea of guilty at the first opportunity. You were trafficking in 841 grammes of cocaine. The guideline case for trafficking in that amount of cocaine is stated in Abdallah. For trafficking in amounts between 600 to 1,200 grammes attracts a sentence of 20 to 23 years’ imprisonment if you had been convicted after trial. For trafficking in 841 grammes, had you been convicted after trial, I would have taken a sentence of 21 years and 1 month’s imprisonment.

There is, in this case, an aggravating circumstance which calls for an enhancement of your sentence as you had brought these drugs into Hong Kong. That is normally referred to as an international element and in regards to the case of Chung Ping Kun, CACC 85/2014, I enhance your sentence by 1 year 8 months’ imprisonment. Therefore, the starting point, if you had been convicted after trial, would have been one of 22 years and 9 months’ imprisonment. Giving you the full one-third discount, you should be sentenced to 15 years and 2 months’ imprisonment.