HKSAR v. VERGARA CLAVIJO MILLER AND ANOTHER

HCCC 334/2017

[2018] HKCFI 822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 334 OF 2017

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

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COURT:

The defendants pleaded guilty to one charge of trafficking in a dangerous drug contrary to section 4 1(a) and 3 of the Dangerous Drugs Ordinance for which they were jointly charged. In addition, D1 pleaded guilty to one charge of possessing a false instrument, that is Charge 3, contrary to section 75(2) of the Crimes Ordinance, Cap 200. Whilst D2 pleaded guilty to one charge of possession of a dangerous drug, that is Charge 2, contrary to section 8 1(a) and 2 of the Dangerous Drugs Ordinance and one charge of using a false instrument, Charge 4, contrary to section 73 of the Crimes Ordinance, Cap 200.

D1 was seen by Customs officers to have accompanied D2 to a building where D2 collected a parcel from a FedEx courier. D2 produced a false Form 8 in the name of Menaz(?) the consignee in collecting the consignment sent from Venezuela.

D2 then entered the building, D1 followed suit. Later both defendants were seen leaving that building and took the MTR from Sham Shui Po to the Hong Kong University Station. Throughout the journey D2 carried the parcel. They parted at the exit after D2 handed the parcel to D1.

D1 was intercepted carrying that parcel at Queens Road West. He was also found to be in possession of a paper with D2's particulars and the Form 8 used by D2 in signing for the parcel. Drugs were concealed inside a plastic box in the circuit board of a mixing console inside the parcel. D2 was later arrested that evening at his residence and traces of cocaine were found.

Both of them now admit that, at the material time, they were unlawfully trafficking in the cocaine found in the parcel.

The drugs were found to be 606 grammes of a solid containing 409 grammes of cocaine with a retail value of HK$725,988.

D1 is now aged 44. He has a clear record, resided in Columbia, divorced with two sons aged 15 and 20. A second hand car dealer.

D2 is aged 46. I am told that he has received no education and worked as a farmer back in his own home country. He has one previous record of trafficking in a dangerous drug back in 2009 for which he received a sentence of 10 years' imprisonment. He was last discharged on 11 July 2013.

Counsel for D1 submitted that, at the material time, that D1 accepted he was trafficking was limited to the time at the exit of the Hong Kong University Station and not earlier during the collection of the parcel. Counsel further submitted that D1 was not an importer jointly with D2 and was only a delivery man running an errand for D2 and the false Form 8 found in his possession was given to him by D2 at the same time when he received the parcel. Therefore, it was submitted, the case against D1 did not involve any international element in the sense that he was an importer or consignee of a parcel of drugs from abroad.

In relation to the 3rd charge, counsel urged that there is insufficient evidence to infer the piece of paper passed to D1 was the false Form 8 and, therefore, taken at its highest, D1 only received the false Form 8 from D2 at the same time when D2 passed the parcel to him at the exit of the Hong Kong University Station. Therefore, D1's possession of the false Form 8 should be regarded as part and parcel of a single transaction and should attract totally concurrent sentences.

Furthermore, counsel relied on the affidavit of Father Wotherspoon, a Catholic prison chaplain who was engaged in an anti-drug campaign to the effect that D1 had written out his story which Father had put on the website as a warning about the danger of drug trafficking. Counsel submitted that D1 should be credited by way of a further discount in sentence because in circumstances not dissimilar to the present, other defendants in other cases have been awarded further discount ranging from 6 to 12 months' imprisonment.

Mitigation in respect of D2. Counsel for D2 submitted that the timely plea of D2 demonstrated genuine remorse. It is also urged that the drugs involved in the 2nd charge was only traces and the 4th charge also arose from the same transaction so that concurrent sentences would be appropriate.

In sentencing the defendants, I have taken into account the nature of the offences, the nature and quantity of the drugs involved, sentencing authorities and tariffs as well as mitigation forwarded by D1 and D2's counsel on their behalves. I have also perused the hand-written letter written by D1.

For trafficking in cocaine weighing between 400 to 600 grammes, a starting point between 15 to 20 years' imprisonment is to be adopted. The amount of drugs in the 1st charge calls for a starting point of 15 years.

With all that is in the Summary of Facts before I do not accept that D1's participation was as late as at the exit of the Hong Kong University Station. It is obvious that D1 appeared from the Sham Shui Po MTR station to join D2, although, at a distance custom officers could not say what that piece of paper handed by D1 to D2 was before they separated. The evidence is that D2 had used a false Form 8 to sign for the parcel and that Form 8 was found in D1's possession at the time of the arrest.

Although D1 was not next to D2 when D2 signed for the parcel from the FedEx courier, he was seen to be nearby and after D2 received the parcel he entered the building following D2. In less than two hours' time they both left the building at the same time and travelled together to the Hong Kong University Station where D1 was arrested being in possession of a parcel of drugs and the false Form 8.

It is clear, from those facts, that D1 was acting in concert with D2 in respect of the collection and delivery of the parcel sent in from abroad. This is a case which involved international element. The facts speak for themselves.

I enhance the 15 years' imprisonment in respect of the 1st charge for one year, that is, to 16 years to reflect the aggravating feature of the international element.

In relation the Father Witherspoon's campaign, it has been complimented as highly commendable as per Zervos J, HCCC 218/2017, "Inmates participation vary from one to another" McWalters JA, CACC46/2016.

The defendant, Osinaga who appeared before Zervos J, apart from showing a genuine effort in participating and supporting in a campaign also engaged her family in spreading the message, engaged in communication through social media. He was satisfied that the defendant had made a positive and major contribution to the campaign.

The letters exhibited with Father Witherspoon's affidavit were written by D1 between 22 September 2017 and 10 November 2017, although he was arrested as early as 10 August 2016.

I am not persuaded that D1's participation was an active and ongoing one. In fact, the content of the first letter exhibited dated 22 September 2017, showed nothing but his insistence of innocence even up to the time of interception by custom officers. His version of how he arrived at the place of D2 after the parcel was collected was in direct contradiction with the Summary of Facts which he has admitted.

The Summary of Facts was that the parcel was only signed for by D2 after D1 handed a piece of paper to D2 and during that collection he was in close proximity in the vicinity. I find that the contents of that letter went against any genuine remorse as such.

D2 has been in Hong Kong since 2006. He held a Form 8 issued in 2013. Whilst being a Form 8 holder he was permitted to remain at liberty in Hong Kong whilst his torture claim was being processed. However, in 2007 for a similar offence of trafficking in a dangerous drug, he has been sentenced to 10 years' imprisonment.

After his discharge from prison three years later he committed the present offence. I refer myself to the case of Shah Syed Arif [2016] 4 HKLRD 664. Mahabul Alam Khan CACC 116/2016 and HKSAR v Fitri CACC 265/2016. The Court of Appeal has repeatedly said that a Form 8 holder and non-refoulement claimant at the time of trafficking offence was a significant factor in aggravation.

In Mahabul's case the Court of Appeal considered a 15 months enhancement was appropriate for a starting point of 12 years and 7 months, ie, roughly a 10 percent enhancement so I increase D2's sentence on charge 1 by a further 15 months to 17 years and 3 months.

Each of them is entitled to the one-third discount for the timely plea. D1 on the 1st charge is sentenced to 128 months and D2 to 138 months.

In relation to the 2nd charge of possession of dangerous drugs against D2 I adopt a starting point of 18 months reduced to 12 months on his plea and I order that to run concurrently.

In relation to the false document charges D1 faced one count of possession and D2 one count of using. The subject matter is a false Form 8 which was to enable them to further a crime, namely, the collection of an illegal parcel of drugs for onward delivery. A concurrent sentence is wrong in principle.

I consider a starting point of 15 months for each of those charges appropriate and reduce it on the plea to 10 months. I order to run partially consecutive, 6 months consecutive to the sentence of the drug charge.

In total D1 serves a total of 134 months and D2 a total of 12 years.