HKSAR v. BERTHY ENCISO RAFAEL

HCCC 235/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 235 OF 2015

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

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COURT: The defendant, Mr Berthy Enciso Rafael, pleaded guilty at the committal proceedings to one count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the defendant on the 31st day of December 2014 at Customs Arrival Hall A, Passenger Terminal 1, Hong Kong International Airport, Lantau Island in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1.88 kilogrammes of a solid containing 1.40 kilogrammes of cocaine.

He is committed to this court for sentence.

Facts admitted

At about 1355 hours on 31 December 2014, the defendant, who arrived in Hong Kong from Sao Paolo, Brazil via Addis Ababa, Ethiopia, was intercepted for a check by the Customs and Excise officers at the Green Lane of Customs Arrival Hall A, Passenger Terminal 1 of the Hong Kong International Airport.

An X-ray check of the backpack of the defendant revealed suspicious images. The lining of the backpack was cut open and a plastic bag containing eight packets of a damp solid were found. The damp solid upon drying was found to weigh 1.88 kilogrammes of which 1.4 kilogrammes are cocaine. On being arrested and cautioned in English the defendant remained silent. Cash of US$691 was found on the defendant.

On 1 January 2015 in a video-recorded interview conducted with the assistance of a Spanish Interpreter, the defendant admitted, inter alia, that through the introduction of a friend he came to know a person named Jose. On the instruction of Jose, he collected the backpack from Sao Paolo, Brazil and took it to Hong Kong. He was told it contained about 1 kilogramme of cocaine. Jose arranged the trip and hotel in Hong Kong for him. He was to call Jose after he had checked into the hotel in Hong Kong. Of the US$691 found on him, US$500 was given to him by Jose and the rest was his own money. He did the job for money to treat his asthma and heart disease.

The street value of the dangerous drug in December 2014 was about HK$1.8 million.

Criminal record

The defendant has a clear record in Hong Kong.

Mitigation

The defendant is aged 50 and is a Colombian. He has a cohabitee in Colombia. His mother is aged 78, while his father has passed away.

According to counsel for the defendant, the defendant had been detained in hospital on a few occasions after he was incarcerated for the present offence. The reason for admission to the hospital was because of his heart disease.

Defence counsel submits the related medical report to the court. Defence counsel told the court that the defendant had also suffered from a suspected heart attack.

Defence counsel explains that the defendant committed the present offence because he needed money for operation to treat his heart disease.

After being arrested in Hong Kong, the defendant was willing to assist Customs and Excise by making a controlled delivery of the dangerous drugs, but because there was no Spanish Interpreter the exercise was not carried out and the golden opportunity for doing so was missed.

The defendant was told that the dangerous drug he was carrying was about 1 kilogramme of cocaine. Defence counsel submits that although the amount of cocaine turned out to be 1.4 kilogrammes the defendant should be sentenced on the basis of 1 kilogramme of cocaine, citing HKSAR v Kayani Hamid Ilyas CACC 521/2004 in support.

Defence counsel submits to the court a mitigation letter written by the defendant in which the defendant says that he was not a drug dealer and he was a decent merchant selling clothes. He needed to travel to do business. In doing so he was robbed on one occasion and was injured. The medical expenses amounted to a little bit less than US$3,000. As he needed money, he was lured to commit the present offence for a reward of US$3,000. He apologises to the Hong Kong people and asks for mercy of the court.

Sentence

In the case of AG v Rojas [1994] 1 HKC 342, the Court of Appeal held that the sentencing guidelines for the offence of trafficking in heroin hydrochloride are applicable to trafficking in cocaine.

According to HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, for a quantity of 1,200 to 4,000 grammes of heroin hydrochloride the normal starting point is 23 to 26 years’ imprisonment.

The amount of cocaine in the present case is 1.4 kilogrammes, ie, 1,400 grammes. The starting point is, therefore, about 23 years 2 months’ imprisonment.

The defendant committed the offence for economic reasons which is certainly not a ground for mitigation.

Defence counsel asks the court to sentence the defendant on the basis of 1 kilogramme of cocaine because the defendant was told of this amount when he was given the dangerous drugs and he believed that he was trafficking this amount.

With due respect, the court does not agree to the submission of the defence counsel.

The present case is different from the authority of Kayani Hamid Ilyas cited by defence counsel. In the authority, the appellant was convicted of conspiracy to traffic in a dangerous drug, instead of trafficking in a dangerous drug. And, more importantly, no dangerous drug apart from a small quantity of sample of heroin was actually brought into Hong Kong in the authority. The Court of Appeal was satisfied that the appellant was not aware that the quantity of dangerous drugs involved was as much as 3 kilogrammes.

In the present case, however, the defendant actually took the dangerous drug into Hong Kong. The dangerous drug was concealed inside the backpack which the defendant carried. It is therefore impossible that he was not aware of the substantial amount of dangerous drugs he carried in his backpack.

The court sees no reason to depart from the sentencing guidelines, thus adopting 23 years 2 months’ imprisonment as the basic starting point.

There is an aggravating factor in the present case in that the defendant imported the dangerous drug into Hong Kong from Brazil. This necessitates the basic starting point to be enhanced.

In the case of HKSAR v Chung Ping Kun CACC 85/2014, the Court of Appeal having reviewed the cases involving enhancement of sentences due to international element laid down guidelines for the level of enhancement. Although the authority deals with “Ice”, the guidelines given are broad enough to cover various kinds of dangerous drugs.

Having considered this authority and other related authorities, the court enhances the basic starting point to 25 years 3 months’ imprisonment as the starting point for the present offence.

Giving credit to the defendant for his plea of guilty and his willingness to carry out a controlled delivery, the court sentences him to 16 years’ imprisonment.