HKSAR v. BARRAGAN HERRERO JOSE ANTONIO

HCCC 30/2021

[2021] HKCFI 1609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 30 OF 2021

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

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COURT: The defendant is charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in respect of 2,980 grammes of a solid containing 2,090 grammes of cocaine. He pleaded guilty to this offence at the first opportunity in the magistracy and was committed to the Court of First Instance for sentence. At the time of his plea, he admitted the truth of a Summary of Facts which set out the circumstances of the commission of his offence. Before me, he confirmed both his plea and his admission of that Summary of Facts.

The Summary of Facts reveals that the defendant arrived at the Hong Kong International Airport from Spain via Brussels on 9 March 2020. He was carrying a black handbag and a black suitcase and was intercepted by a Customs Officer who checked his bags.

An x-ray examination of his suitcase revealed a suspicious image in the bottom of the suitcase. Officers used an electric drill to penetrate into the bottom of the suitcase and when they did so, some white powder fell out.

The customs officers used tools to remove a plastic board from the bottom of the suitcase and discovered a yellow packet wrapped with adhesive tape containing a substance suspected to be dangerous drugs. Upon subsequent examination, the substance was found to be the quantity of cocaine that is particularised in the charge.

Customs officers conducted a preliminary screening of the defendant’s phone and found within it suspicious messages between the defendant and two unknown persons. The defendant remained silent under caution, both at the preliminary inquiry and a subsequently conducted video-recorded interview.

The defendant’s counsel, Ms Elizabeth Herbert, informs me that the defendant is 50 years of age, was born in Spain and received primary school level education there. He worked as a construction worker from 1998 to 2016, earning approximately 1,000 to 1,200 Euros per month. However, he lost his employment in 2016 and since that time has been unemployed.

Prior to the offence, he relied on his family for financial support. All of the defendant’s family members, including his mother, father and two brothers reside in Spain and prior to his arrest, the defendant lived with his parents. The defendant is divorced and his two children reside with his former wife. The defendant has a clear criminal record.

Ms Herbert informs me that the reason for the commission of the offence was purely financial. The defendant had borrowed 10,000 Euros as he and his family were struggling financially. When he was unable to repay this debt, the lender asked him to bring the drugs to Hong Kong as repayment.

Ms Herbert emphasises that the defendant is remorseful and understands that what he did was wrong. He is, she says, willing to accept the consequences of his actions.

The law relating to the sentencing of drug trafficking offenders was recently refined and clarified by the Court of Appeal in a case of HKSAR v Herry Jane Yusuph [2020] 1 HKLRD 290. In that judgment, Macrae VP in giving the judgment of the court set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug. Whilst reaffirming that for this offence personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence and punishment.

There was, however, still a role for the exercise of sentencing discretion. The goal of the sentencing guidelines was to achieve reasonable consistency in general but not at the expense of preventing justice from being done in a specific individual case. They were not to be regarded as straightjackets by sentencers and did cater for a discretionary element.

With these general principles in mind, I now turn to the six steps laid down in that judgment.

The first step is to identify the relevant guideline band applicable to the quantity of dangerous drug concerned. In respect of the quantity of cocaine in which the defendant trafficked, the relevant decision is HKSAR v Abdallah [2009] 2 HKLRD 437. This case lays down a sentencing band of 23 to 26 years’ imprisonment for quantities of 1,200 to 4,000 grammes of cocaine narcotic.

The second step is to assess the defendant’s role and culpability based upon the evidence. It is not disputed that the defendant’s role was that of an international courier importing drugs from another country into Hong Kong by air. Essentially, for airline passengers, there are two common methods of importation, the first is within the body of the passenger and the second is within their luggage.

The first means of transportation obviously exposes the trafficker to greater danger to themselves should any of the drug leak out from the internal cavity in which it is concealed but whether this distinguishes them from the luggage importer is something that I do not have to decide in the present case. In terms of the trafficker who is bringing in dangerous drugs in their luggage, there is nothing in the evidence placed before me to distinguish this defendant from other international couriers using the same modus operandi. I assess his culpability and role at the same level as any other international courier.

The third step is to identify where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and the role of the defendant. In respect of this third step, I do not understand the Court of Appeal to be eschewing the use of mathematics to identify where within the relevant band, weight would suggest the defendant comes. Weight, of course, is just one of the factors, albeit one of the most important factors.

The assessment made in the second step is also relevant to determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers and couriers fall into this category.

In respect of this defendant, trafficking in 2,090 grammes of cocaine, a mathematically calculated place within the 1,200 to 4,000 grammes of narcotic band of 23 to 26 years’ imprisonment would be 23 years 10.8 months’ imprisonment which I round down to 23 years 10 months.

Taking into account my assessment of the defendant’s role and culpability and the weight of the cocaine narcotic in which he trafficked, I cannot see any basis for departing from the mathematically calculated place within the relevant band. This provides me with a starting point of 23 years 10 months’ imprisonment.

The fourth step requires me to consider whether there are, at present, any aggravating factors which might require me to enhance the starting point. It is not disputed that I am bound by the Court of Appeal authority in the Abdallah judgment to enhance the defendant’s starting point to allow for the presence of the aggravating factor that he was trafficking the cocaine across an immigration border. For this so-called international element, in respect of this quantity of cocaine narcotic, the appropriate enhancement is 2 years’ imprisonment. This results in a notional sentence after trial of 25 years 10 months’ imprisonment.

The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. The one-third discount which an offender receives for his timely plea of guilty will generally encompass the bulk of the mitigating factors available to a defendant such as prior good character, remorse, and impecuniosity as a motivation for the offence.

After carefully considering the submissions of Ms Herbert on the mitigating factors present in this case, I am not persuaded that there is any basis for me to grant the defendant a discount greater than the usual one-third. A one-third discount of 25 years and 10 months produces a sentence of 17 years 2 months’ imprisonment.

The sixth step is to stand back and observe the overall sentence to ensure that it is fair, just, and balanced in all the circumstances of the offence and of the offender. This may be more relevant to multiple offence cases but in my view the Court of Appeal was not limiting it to such cases. The concept of totality ensures that the final sentence is not a crushing sentence but, as I have said, one that is fair, balanced, and ultimately just.

In this respect, I note that the defendant is 50 years of age and has lived a life that has hitherto been free of any breaches of the criminal law. A sentence as long as 17 years and 2 months will mean that even if he receives a further discount from the Commissioner of the Correctional Services for good behaviour while serving his sentence, he will still not be discharged from custody until he is into his 60s. I am satisfied that the circumstances justify me reducing the final sentence so that it is not a crushing one on him.

I sentence the defendant to 16 years and 6 months’ imprisonment.