HKSAR v. VAZQUEZ MORALES PEDRO ROBERTO

HCCC 10/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 10 OF 2017

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

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COURT:

Mr Vazquez, on 9 January 2017, you pleaded guilty before the Eastern Magistracy to one count of trafficking in dangerous drugs, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you accepted that you arrived at Hong Kong International Airport on 19 May 2016 with 1.170 grammes of liquid cocaine, having travelled to Hong Kong from Sao Paolo, Brazil, via Dubai.

The cocaine was secreted in hidden compartments inside a computer bag you were carrying. The street value of that cocaine was HK$1,846,140.

I have heard all that Mr Arthur has said on your behalf, most importantly, you have, at all times, admitted the part you played such that no extra expense and inconvenience has been incurred by the authorities in Hong Kong. For that, you will receive a full one-third discount from the starting point after trial which I find in my discretion to be suitable in this case.

Mr Arthur also points out that you were and are a vulnerable person. You are now almost 63 years of age, and living on your own in Mexico, just about making ends meet by an honest living. Your future prospects were no doubt bleak and your earnings suggest that you would not have been able to save for any sort of retirement. It must have been weighing heavily upon your mind as to how you would support yourself in the years to come, especially if you became infirm. Drug cartels prey upon the young, the old, and the vulnerable, because they are susceptible to persuasion, which if their circumstances were different they would never entertain. I have no doubt, given your exemplary life to date, you would not have succumbed to the offer which was made to you to earn what must have appeared to be enough money to see you through any difficult times ahead.

I also take into account that at your stage of life, after a term in prison, you are highly unlikely to be able to support yourself in the future, and that the last part of your life would be very difficult indeed. That is a further punishment, I feel, but one which is unknown and unquantifiable.

Mr Arthur has referred the court to the sentencing remarks made by Zervos J in HKSAR v Pacaya Tapullima Jose Abel HCCC 210/2014, in which the Judge found it necessary to comment upon the growing prevalence of international drug smuggling from Latin America and the fact that little information is placed before the court in respect of the individual background of the perpetrator whom the court has to sentence.

As the judge said in Pacaya, whether the defendant is a member of a cartel or a simple drug mule is not known and our sentencing regime does not, on the face of it, differentiate in respect of the calculation of a starting point.

Indeed, as the judge pointed out, there is little leeway in variation of sentencing, save in exceptional circumstances and there is good reason for that, because those who fall to be sentenced should have an expectation that they will be dealt with in exactly the same way no matter which judge they come before.

On the other hand, it may be that the court should consider the reality of the situation, for those in countries far from our own and with local situations far adverse to ours, the young and vulnerable drug mule who has been approached when in truly difficult personal and familial circumstances, may be in a different position than the opportunist drug carrier or someone who is more mature, financially independent and worldly wise and who can be said to truly understand the risks which they have embarked upon and the harm which they cause by so doing. It will very much depend upon the circumstances of the case and counsel should not be precluded from putting their very best case forward on behalf of their client.

Too often, counsel appear in this court to believe that no mitigation upon personal circumstances will reduce the sentencing outcome and therefore do not address the characteristics of the defendant at all. That cannot be right. Counsel should endeavour to assist the sentencing court in understanding the nature and motivations of those which they must sentence, as Mr Arthur has done today.

In a similar vein, as Zervos J pointed out in Pacaya, there appears to be something of a lottery when it comes to providing assistance to the authorities. Sometimes Customs & Excise will seek to carry out a controlled delivery but sometimes they will not do so even where it is clear that there must be agents far higher up the chain of command, ready, willing and able to receive the drugs which have been smuggled in.

Apprehending drug mules alone does nothing towards eradicating trafficking in dangerous drugs. I suggest that Father Wotherspoon’s programme has done far more than the handing down of large sentences in Hong Kong; a place where most drug mules have never heard of before, being approached to assist drug cartels. There are literally millions of people in a similar situation in Latin America and Africa who are susceptible to persuasion to carry dangerous drugs, and we need to address those that deal in dangerous drugs in Hong Kong, and for that, we need to trace their activities and whereabouts and who better to garner information from than those who are trafficking in dangerous drugs internationally and who would be willing to assist, if only they were asked to do so. Every little bit of intelligence helps.

I have also had the benefit of considering the reasons for sentence of Barnes J in the case of HKSAR v Rodas Suarez Carlos Hernan HCCC 447/2016, which refers to the decision of the Court of Appeal in HKSAR v Odira Sharon Lensa CACC 56/2016. I am well-acquainted with the work of Father Wotherspoon and his team. It is commendable.

As was said by Barnes J, measures such as his:

“Would inform and discourage those in third world countries who are vulnerable to exploitation by the international drug trafficking syndicates, are of great benefit to Hong Kong. Those who participate in such measures are likewise acting in the interests and for the benefit of Hong Kong.”

Barnes J felt the need under HKSAR v Odira Sharon Lensa to hear Father Wotherspoon on the issue. I do not believe that is necessary in this case. Whilst statistics are sparse and not easily available, I take the view that anything which dissuades others from bringing dangerous drugs into Hong Kong is a good thing. Not only for Hong Kong, but for those open to persuasion and I accept that the programme is showing signs of success. This defendant has given it his support and I am sure he will continue to do so regardless of the outcome of this hearing and I have taken that into consideration.

The guideline case for trafficking in between 600 and 1,200 grammes of cocaine in HKSAR v Abdallah [2009] 2 HKLRD 437, and the range of sentence is between 20 to 23 years. Taking into account all that has been said on your behalf, Mr Vazquez, including your good character, which has not been gainsayed, your vulnerability and the remorse you have shown, the appropriate starting point, in my view, after trial, is 21 years.

For the mitigating features advanced, I will reduce that starting point by 1 year, to 20 years. But there is also, I am afraid, the aggravating feature that you have imported drugs into Hong Kong, and according to the Court of Appeal in Abdallah, for amounts over 1 kilogramme, the enhancement should not be less than 2 years, but this was only just over 1 kilogramme, so in all the circumstances of the case, and in my discretion, I will enhance the sentence by 1 year to 21 years.

Mr Vazquez, you will receive a full one-third discount for your plea at the earliest opportunity, and you will go to prison for 14 years.