HKSAR v. YEPES SANTANA GLORIA ESNEDA

DCCC 447/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 447 OF 2017

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Reasons for Sentence

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1.  The defendant was charged with three counts of trafficking in a dangerous drug involving 0.51 gramme, 5.84 grammes and 13.18 grammes of cocaine respectively. She pleaded guilty to all charges and was convicted accordingly.

The Prosecution Case

2.  At about 1 pm on 9 February 2017, the police officers saw the defendant coming out from the exit of Hong Kong Mansion in Yee Wo Street, Causeway Bay.  The defendant was carrying a black handbag.  She took the MTR to go to Sheung Wan.  The defendant went to the mall of Shun Tak Centre and proceeded to a shop called Sa Sa Cosmetics on the 2nd floor of the mall.

3.  At about 1:20 pm on the day, the defendant was seen placing something into the right hand of a foreign male outside the said cosmetics shop.  That foreign male put the stuff into the pocket of his pants. They parted.  Both the defendant and the male were intercepted at different parts of the mall.

4.  Upon search on the foreign male, the police officer found, inter alia, one paper packet in dark colour containing one plastic bag containing dangerous drug.  Upon analysis, the said dangerous drug was 0.64 gramme of a solid containing 0.51 gramme of cocaine. (Charge 1)

5.  On the other hand, body search of the defendant was conducted on the 1st floor of the mall.  The police found one transparent resealable plastic bag containing 13 paper packets (six in blue, six in brown and one in black) inside one of the pockets of the defendant’s jeans. Inside the said paper packets, there are 13 plastic bags and they contained a total of 9.76 grammes of a powder containing 5.84 grammes of cocaine. (Charge 2)

6.  The police found, inter alia, two $500 banknotes (Exhibit P5), one smartphone, one Octopus card and a wallet containing banknotes of $360 and some coins in the black handbag carried by the defendant.

7.  At about 3:15 pm on the same day, the defendant was escorted back to her residence, namely, Room 1, Flat D on the 17th Floor of Hong Kong Mansion.  Upon search, the police found the following items:   

(1) one plastic box (Exhibit P6) containing:

(a) 11 paper packets containing 11 plastic bags. These plastic bags contained a total of 8.12 grammes of a solid containing 5.88 grammes of cocaine and

(b) eight paper packets containing eight plastic bags. The plastic bags contained a total of 5.71 grammes of a powder containing 4.51 grammes of cocaine;

(2) a notebook (Exhibit P17) with markings indicating, inter alia, different dates from December 2016 to February 2017, different places in Hong Kong and different sums of money;

(3) a wooden multi-drawer box (Exhibit P22, see photo 20 of the photo album) in which the following items were found:

(a) six transparent resealable plastic bags containing a total of 3.54 grammes of a solid containing 2.79 grammes of cocaine;

(b) a broken spoon handle (Exhibit P18);

(c) three stacks of cash totalling $25,500 (Exhibit P9);

(d) an electronic scale (Exhibit P6);

(e) a metal box containing some sheets with some transparent stones (Exhibit P8);

(f) a transparent resealable plastic bag containing 24 transparent resealable plastic bags (Exhibit P7).

(4) a pair of scissors (P20) on a chair;

(5) an adhesive tape holder with one adhesive roll used (Exhibit P19).

8.  The defendant was arrested.  Travel index control records showed that the defendant, holder of a Colombian passport, entered into Hong Kong on 10 December 2016 and was permitted to stay in Hong Kong till 10 March 2017. 

9.  With the assistance of a Spanish interpreter, the defendant made the following admissions in two video-recorded interviews:

(1) She was born in Colombia and lived alone in Room 1 in Hong Kong Mansion for about two to three months.

(2) The monthly rent of the room was about HK$7,650.

(3) The defendant sold dangerous drug to the foreign male in the mall. The male gave her two banknotes of $500 each for the drugs.

(4) She knew the paper packets in question contained dangerous drugs.

(5) The two banknotes of $500 seized from her were the money paid by the foreign male.

(6) The wooden multi-drawer box, the electronic scale, the resealable plastic bags, the cash, the 19 paper packets of cocaine (P3) found in the room belonged to the defendant.

(7) She did not consume drugs.

(8) The defendant claimed the money totalled $442 (360 in banknotes and 82 coins) found in the defendant’s handbag (Exhibit P15) was given to her by her boyfriend.

(9) The cash in the sum of $25,500 (Exhibit P9) belonged to her.

(10) The notebook (Exhibit P17) belonged to her.

10.  The expert from Narcotics Bureau was of the view that the street value of the dangerous drugs so seized amounted to $22,910.

Mitigation

11.  The defendant is aged 39 and divorced.  She has an 18‑year-old daughter in Colombia.  She had a clear record in Hong Kong.  It was said the defendant was a salesperson selling clothes in Colombia for some 13 years.  Defence counsel submitted a number of mitigation letters which were written in Spanish, except one with English translation.  I sought assistance from the court Spanish interpreter to translate the so-called employment certificate and asked the defence to provide the English translation of the mitigation letter written by the defendant.

Sentence

12.  The defendant came to Hong Kong on 10 December 2016 as a visitor.  This was the first time she came to Hong Kong.  She claimed that she was “unemployed in Colombia” (see paragraph 5 of the antecedent statement dated 19 April 2017).  In mitigation, defence counsel said the defendant was a salesperson selling clothes for 13 years.  Yet from the employment certificate purportedly provided by the head of the human resources management of a company called STF Group SA, it was said the defendant worked as a sales adviser from 2003 to October 2016.  No original copy of these documents was provided.  Attached to this certificate is a mitigation letter which was not signed.  Defence counsel also submitted a mitigation letter from Father John Wotherspoon who only provided his email address and the post box of Kowloon Central Post Office.  Another letter, together with a few photos, which was purportedly written by “Gloria Esneda’s family” was tendered.  The letter praised the defendant for her quality as a good woman of good feelings and moral values.  In the defendant’s letter of mitigation, the defendant expressed her sincere apologies and asked for forgiveness.  The defendant said she “made this trip in search of a better fortune for my daughter and my family”.  Her mother is suffering from disability after an accident.

13.  The defendant came to Hong Kong as a visitor but she had rented a room in Hong Kong Mansion for about two to three months.  I would not speculate how could the defendant finance her flights, daily expenses and accommodation in Hong Kong.  I have no clue if the defendant can speak English either.  That said, I can only impose sentence on the basis of the Summary of Facts so admitted for the present purpose.  The defendant sold one packet of 0.64 gramme of a solid to the foreign male for $1,000.  The packet was similar to the black packets found in the room (see photo 25 of the photo album).  The defendant had another 13 packets of cocaine in her handbag when she was intercepted.  Back to her residence, the defendant was found to have further 19 packets containing cocaine in solid or powder form.  She had electronic scale, some 24 resealable plastic bags.  She also made certain “recordings or markings” in the notebook.  All these factors indicated that the defendant was engaging in drugs-trafficking activity.  The defendant in her antecedent statement and also in her admission claimed that she is not a drug addict.

14.  Given the strength of evidence, the defendant has made a very wise decision to plead, for which I will give her a full one-third discount in sentence.

15.  In normal circumstances, for trafficking in cocaine for a quantity up to 10 grammes, the starting point is from 2 to 5 years, whereas for a quantity of cocaine from 10 to 50 grammes, the starting point is from 5 to 8 years.

16.  Charges 1 and 2 involve 0.51 gramme and 5.84 grammes of cocaine.  I would adopt a starting point of 1 year and 2½ years respectively.  I take a lenient stance and order these two sentences to run concurrently.  With her guilty plea, these two sentences are reduced to 20 months.

17.  For Charge 3, the dangerous drug was found in the defendant’s residence and they had been packaged, in my view, for ease of trafficking.  The colour of the packets can carry different price tags. There are two forms of the dangerous drug: 11.66 grammes of a solid and 5.71 grammes of a powder.  The total quantity of dangerous drug for Charge 3 is 13.18 grammes of cocaine.  I use 5 years as the starting point, and with the plea, I reduce it to 40 months.

18.  I have to consider the totality principle. Taking all factors into account (with the total quantity of cocaine in all three charges amounted to 19.53 grammes), I order that 4 months of the first two sentences be run consecutively to the third sentence.  That means I sentence the defendant to 44 months.