HKSAR v. DIAZ GUTIERREZ, ANTONIO JOSE MARIA AND OTHERS

HCCC 315/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 315 OF 2013

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: Background and the Facts

The defendant, together with his two co-accused, was charged with one count of “doing an act for the purpose of trafficking in a substance believed to be a dangerous drug”, contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance, Cap 134.

After the defendant pleaded guilty to the count, the prosecution offered no evidence against the remaining defendants and they were acquitted of the offence accordingly. Therefore, only the defendant now stands to be sentenced.

Briefly, the facts admitted by the defendant revealed that he was the one who approached a staff member of a local operator of a scrap metal and car yard for the receipt of a container. The container was shipped on 3 October 2012 from Panama to Hong Kong via Shanghai. The cargo stored in the container was described as iron scrap; however, when the container arrived in Shanghai and was searched by the mainland Customs Officers on 31 October 2012, it was discovered that there was a sealed metal box amongst the scrap metal.

When the box was cut open, the officers found 19.99 kilogrammes of a mixture containing 13.01 kilogrammes of cocaine in the form of blocks; 20 in total.

Later, the mainland Customs Officers put 20 dummy blocks inside the metal box, resealed it and allowed the container to be shipped to Hong Kong. In the meantime, the Hong Kong Police were alerted.

On 9 November 2012, police officers were deployed to make observations in the vicinity of the yard. About 2 pm, the defendant arrived at the yard with the two co-accused who were named in the count. A large empty suitcase was brought along. In the meantime, workmen of the yard opened and unloaded the container in the presence of the defendant and the other two males.

When the workmen found and removed the metal box from the container, the defendant and his companions moved the metal box from the open area of the yard into the kitchen, with the defendant bringing along the large empty suitcase. The defendant told a staff member of the yard that the metal box belonged to him. He then asked the staff to call a taxi as he had to move the metal box away. Meanwhile, the defendant also asked to be provided with an electric saw as he had to cut open the metal box. When the defendant attempted to open the metal box, the police officers entered the kitchen. At that time, the defendant and his two companions were all standing around the box.

The average retail price in respect of the drugs seized and detained in Shanghai was about HK$23.4 million. The defendant admitted that at all the material times, he believed the metal box to have contained cocaine.

Mitigation

The defendant was born in Mexico and is now aged 35. He moved to live in Hong Kong in 2009. He is married with two children, aged 2 and 6. Prior to this offence, the defendant had a clear record.

In mitigation, it was said that the defendant received various training from the vocational training school after he had moved to Hong Kong. He had been a cook and had operated a restaurant, but since the business was not good, the restaurant was closed down.

In 2011, the defendant started a scrap metal business which involved receiving containers of scrap metal from overseas. Mr Egan informed that the defendant was able to earn HK$6,000 to HK$8,000 per container and he processed three such containers at the time of the offence.

Although the defendant did not earn a lot, Mr Egan said that he still sent money to his family members in Mexico and the defendant’s wife, who is a qualified architect and who works as an assistant project manager here, also contributed financially to the family.

In relation to the present offence, Mr Egan submitted that the defendant was only a foot soldier. He was engaged simply because he knew the local terrain and was conveniently in the scrap metal business.

While accepting that the defendant knew the container had cocaine stored inside it, it was said that he did not know how much was there. His job was to receive the drug and wait for further instructions. Mr Egan emphasised that the defendant was not the mastermind, nor someone high up in the chain responsible for this drug trade.

Letters from the defendant, his wife, his parish priest and his Consul General were given to the court. In short, the defendant was described as a loving and well-behaved person who is willing to help others.

Sentencing Considerations

In R v Ye Wing Leung [1997] 3 HKC 560, the Court of Appeal examined the sentence passed in relation to an offence under section 4(1)(c) of the Dangerous Drugs Ordinance - the same offence as the one in this case - and concluded that a term of 4 years was appropriate in respect of the 1,060 grammes of a mixture which the applicant believed to be heroin.

Although Mr Egan emphasised that in the case of Ye Wing Leung, the court only imposed a term of 4 years, which was about one-fifth of the 20 years’ guideline sentence applicable where the substances had been heroin and that the Ye case was more serious than the one before me as the substances could be used with heroin as adulterants, I do not find the particular facts of that case, nor the term of 4 years, to be of any material assistance.

Needless to say, each case must be decided on its own factual matrix. Further, it was not clear how the court arrived at the sentence of 4 years. One thing, however, is clear; that is the Ye case is not an authority to suggest that where the defendant wrongly believed that the substance he trafficked was a dangerous drug, only one-fifth of the applicable guideline sentence should be imposed. In other words, no such limit or restriction was set in the Ye case.

More recently, in HKSAR v Li Oi Yee [2012] 1 HKLRD 276, the Court of Appeal examined the sentence passed in respect of an offence of attempting to traffic in a dangerous drug in which the appellant believed the substance in question to be “ice” when, in fact, it was not a drug at all. In delivering the judgment of the court, Stock VP observed at page 279 that:

“The harm at which the attempt offence is directed, where the offender believes, albeit mistakenly, the substance to be or to contain a dangerous drug, is the harm created by the advancement of the culture and of the business of trafficking in dangerous drugs. The mens rea in this case is precisely the same as the mens rea had the substance turned out to be a dangerous drug, and there is, by reason of this mens rea a substantial degree of criminality: see R v Patel (1995) 16 Cr App R(S) 267, 272. Whilst part of the sentence in any dangerous drugs case is directed at the actual harm caused by the ultimate consumption of the drug, a significant part of the sentencing aim in dangerous drugs cases is that of deterrence.”

Further, Stock VP pointed out at page 280 that:

“Insofar as the judge in our present case appears to have taken the view that the guidelines for actual trafficking in the drug were of no help, we think that, in a case such as the present, the court should indeed look at the sentence which otherwise would be imposed for trafficking in the drugs which the offender believed she possessed, for her moral culpability remains the same, but the court should at the same time accord a reduction in recognition of the fact that the actus reus brings with it, as matters transpired, no harm to an ultimate consumer.

On that approach, the sentence imposed by the sentencing judge in this case can hardly be said to have been excessive. Indeed, no justifiable complaint could have been made had the sentence been one of 5 years’ imprisonment.”

In the present case, the drug originally meant to arrive in Hong Kong was a total of 19.99 kilogrammes of a mixture containing 13.01 kilogrammes of cocaine. Had this amount of drug actually arrived in Hong Kong and received or handled by the defendant, the court would have sentenced him on the basis of the sentencing guidelines laid down in HKSAR v Abdallah [2009] 2 HKLRD 437.

In the case of Abdallah, a starting point of 26 to 30 years’ imprisonment would be appropriate for trafficking between 4,000 grammes to 15,000 grammes of cocaine. Moreover, where an international element was involved and for amounts above 1 kilogram, an enhancement of not less than 2 years is called for.

Sentencing in this Case

In the case before me, there is clearly an international dimension. The defendant knew that the container was shipped from Panama and he told a staff member of the yard about this; in other words, his mens rea was to receive the drug which was to arrive in Hong Kong from another country.

Mr Egan suggested that as no drug actually arrived in Hong Kong, there is no basis for the enhancement. I reject this submission. The moral culpability of the defendant in receiving a drug in Hong Kong from overseas remains the same, although, unbeknownst to him, the drug had been replaced with dummy blocks in Shanghai.

Therefore, what I would do is to determine an initial sentence based on the defendant’s belief that the metal box contained cocaine and to apply the Abdallah guidelines as well as the enhancement for the international element, but I would then accord a reduction in recognition of the fact that the defendant’s actus reus did not in this case result in any drug being received in Hong Kong.

Insofar as the starting point is concerned, Mr Egan, based on the sentences in the cases of Ye Wing Leung and Li Oi Yee, suggested that it should be in the range of 20 to 50 per cent, certainly no more than 50 per cent, adding that the term of 5 years mentioned in the case of Li was just “obiter”.

As I have mentioned above, while reduction would be given in recognition of the fact that no dangerous drug was actually found, I do not accept that the cases have set a range for the reduction. Much would depend on the facts of the case as well as the relevant aggravating and mitigating factors.

In this case, and applying the Abdallah guidelines, I take the view that an initial starting point of 29 years is appropriate. Moreover, as there is an international dimension, I would enhance the starting point by 2 years, making a total of 31 years’ imprisonment.

This, of course, is the starting point in a case where the substance was actually a dangerous drug. In the present case, as the cocaine in the metal box had been replaced with dummy blocks, I consider that the starting point should be adjusted to one of 19 years. In adopting this term, I have taken into account that, on the facts admitted by the defendant: the offence was not committed on the spur of the moment, but was planned and organised; the defendant was not acting alone; the defendant was the key organiser of the events in Hong Kong; the defendant was fully aware of and all along intended to receive the drug from overseas and that, had there not been the interception in Shanghai, about 13 kilogrammes of cocaine, not any innocent substance, would have arrived in Hong Kong.

Now, although Mr Egan said that the defendant did not know how much cocaine was inside the metal box, I do not regard this as a matter capable of reducing the defendant’s culpability, for if he had agreed to participate in a joint enterprise to traffic in a dangerous drug and not caring about the amount involved, then he should be prepared to accept responsibility for whatever the amount turned out to be.

The defendant will receive a one-third reduction for his plea. Other than that, there is nothing which would warrant any further reduction in sentence.

The defendant’s imprisonment would no doubt cause disruption to his family, especially the two young children, however, he should have considered this before he committed the offence. Further, in cases as serious as this, the defendant’s absence of previous conviction could not be of much assistance in his mitigation.

19 years reduced by one third is 12 years and 8 months’ imprisonment. The defendant is therefore to serve a term of 12 years and 8 months.