HKSAR v. MONTOYA MUNOZ MAURICIO

HCCC 44/2018

[2018] HKCFI 1707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 44 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, on 29 January 2018, you pleaded guilty at the Eastern Magistracy before a magistrate to a charge of trafficking in a dangerous drug. You admitted that on 13 September 2016, at Room B, Flat A, 5th Floor, Fu Lok Building, No 131-133 Wing Lok Street, Sheung Wan, in Hong Kong, you, together with Muriel Correa Edward, unlawfully trafficked in 933.59 grammes of a solid or a powder containing 551.49 grammes of cocaine.

On 13 September 2016 at around 3.13 pm, customs officers spotted you and Muriel Correa Edward, whom I shall refer to as D1, looking around furtively after coming out from Fu Lok Building. When you were intercepted, you struggled to escape but you were subsequently subdued. Upon search, nothing illegal was found on you but a set of five keys.

Upon inquiry about the keys, the 1st defendant led the customs officers to Room B in Fu Lok Building. The keys on you were tested and they could access that room. A search of the room was conducted. On top of a cabinet, a packet of suspected cocaine was found. A tenancy agreement showed you were the tenant of that room since 1 July 2016. That room was searched later that day in the presence of you and the 1st defendant.

In the false ceiling above the open kitchen area of that room, some plastic bags and newspapers dated after 14 July, wrapped the drugs as stated in the charge. There were 83 pellets and 8 packets of the drugs, cocaine. Around 600 small, empty resealable plastic bags and one electronic scale was also found with the drugs.

You were arrested and cautioned about the items found in the false ceiling and remained silent. Later, you were interviewed in a video-recorded interview and you said you did come to Hong Kong from Columbia alone in May 2016 but you could not find a job in Hong Kong.

The street value in September 2016 of all the cocaine seized was in the sum of HK$1,037,218.49.

Through your plea of guilty, you now admit and accept that, at all material times, you had knowledge about the cocaine seized from the false ceiling in that room and you possessed them for the purpose of trafficking.

Defendant, you are 34 years of age, have a clear record and are a Columbian national. Your counsel, Mr John McNamara, has given very full-detailed mitigation on your behalf. He has submitted that mitigation in writing and also has submitted eight letters from family and friends.

In short, you had came to Hong Kong as you had borrowed money from the 2nd defendant for a business you had been running in Columbia, which was a laundry business. Due to being, I believe, targeted to pay extortion protection money, and the money being demanded was very great, your business had difficulties and you came into large debt. As you didn’t want to bother your parents or family, you then borrowed the money from the 1st defendant.

The 1st defendant is your wife’s cousin. As you were unable to repay him the debt, he suggested to you to come to Hong Kong to traffic in drugs to pay off your debt to him. Feeling under great pressure, you agreed and came to Hong Kong. You left behind in Columbia your family, your children who are 8, 15, 19 from a previous marriage and a 6-year-old daughter from your present wife.

You are a well-educated man. You completed school and attended university where you studied architecture for 4 years and then completed a course in international business.

You come from a very successful family. Your father is a surgeon. I believe your mother is an accountant. And from the other letters, you have close ties with lawyers and other people in good positions in life and successful people. They have all spoke glowingly about you, and certainly that what you have done shows that this is very much out of character.

Mr McNamara said that your wish was to show your family you could get by on your own without their assistance, and therefore, came here to commit this very serious crime. When you arrived here, I am informed by Mr McNamara and in his written mitigation that the 1st defendant arranged and directed all your activities whilst you were here. You came here thinking you had no alternative.

Your ticket from Columbia was paid for by the 1st defendant, you were picked up at the airport by the 1st defendant and your apartment was arranged by the 1st defendant. The 1st defendant had furnished your flat where these drugs were found and he had a key with unlimited access to your flat.

Your responsibility or duty was to deliver small packets of drugs to clients. D1 gave you all the orders and sometimes, he would pick up the drugs from your apartment and sometimes, he would bring drugs to your apartment. He would pay you HK$5,000 per week.

It is said that the large quantity of drugs found in the flat, that is the subject drugs of this charge, belonged to the 1st defendant. You had been given them by another Columbian to store in your flat. It was the direction of the 1st defendant that these drugs would be stored in the false ceiling.

The greatest mitigating factor, as Mr McNamara has stated, is your very early plea of guilty at the committal stage. You are therefore entitled to the full one-third discount. Apart from this factor, there is no dispute between the prosecution and Mr McNamara that you have given assistance to the authorities. That assistance is giving NPS statements to the prosecution principally in respect of the 1st defendant.

I am informed that the prosecution were not going to charge the 1st defendant. And as stated in Mr McNamara’s further mitigation, that is because there was no evidence or insufficient evidence against him. However, as conceded by Ms Chit for the prosecution, without your evidence against the 1st defendant, they would not have been able to proceed against the 1st defendant. Therefore, it is as a result of your direct assistance that the 1st defendant was charged with this charge of trafficking in dangerous drugs. You were willing and prepared to give evidence against D1 had he pleaded not guilty.

Stopping there, there is no dispute that on that basis alone, you are entitled to a 40 per cent discount as is laid down in the case in HKSAR v Z. The question here is whether you are entitled to more than a 40 per cent discount. Mr McNamara has stated that you are entitled to a 50 per cent discount because you were willing and prepared to give evidence against the 1st defendant.

It matters not that you did not go into the witness-box and testify against the 1st defendant. He relies heavily on the case of HKSAR v Cheng Chong Shing [2003] 3 HKLRD 989. Whereby at page 994, the Court of Appeal said in its judgement on 21 October 2003, that:

“This court had accepted in the past that if appellants were prepared to testify against their confederates should not lose the benefit they would have gained from so doing because the confederate accepts the truth of the case against him and pleads guilty.”

It went on to say:

“We are of the view that it is appropriate to reduce the appellant’s sentence to reflect his co-operation with the authorities and the fulfilment, so far as he has been able, of his promise to assist in bringing other offenders to justice. We are however not persuaded that the reduction should be as high as the 50 per cent reduction Mr Marray argued for.”

It is Mr McNamara’s submission that even if you, the 2nd defendant, had not given evidence, you are entitled to a discount of 50 per cent from that starting point.

The prosecution has referred to the case of Herrera Jhorman CACC 440/2011, also a Columbia there, where the Court of Appeal discussed the discount for those defendants who did assist the authorities and did not give evidence in the witness-box, and held that those defendants were not entitled to 50 per cent discount.

Mr McNamara seeks to persuade this Court that the decisions of HKSAR v Herrera Jhorman and HKSAR v Z, which is the Court of Final Appeal decision were made per incuriam, and that I am bound by the decision in Cheng Chong Shing. Cheng Chong Shing was a case before Herrera Jhorman and before the Court of Final Appeal decision in HKSAR v Z.

I am bound by decision of the Court of Final Appeal.

I have also been directed to many cases since the Court of Final Appeal’s decision on discounts available. These cases are as follows, which I shall not go through in full. They are, as I have mentioned, Herrera Jhorman, Tsoi Sin Yee, CACC 27/2014, Lau Pui Yan, Mimi, CACC 101/2015, Tsang Ka Wing, CACC 97/2016.

It is clear to me that in those cases, that defendants who came into witness-box and gave evidence against their co-accused, it is those defendants who are entitled to a 50 per cent discount. I therefore do not consider that you are entitled to a 50 per cent discount.

As to the matter of a further discount, Mr McNamara says that you are in a category of a supergrass and should therefore be entitled to not only 50 per cent but two-thirds of the starting point. I also do not consider you to be in the supergrass category. But I do accept that given the relationship between yourself and D1, that is that D1 is your wife’s cousin and that he may know the intricate details of your family and friends, there is a concern for you and the safety of your family and friends in Columbia. I might add, this is not supported by any evidence at all. I do however consider that you should be entitled to a 45 per cent discount.

On the other hand, there is a very serious aggravating factor in this case. Defendant, you were recruited by the 1st defendant to come to Hong Kong to commit a crime. You knowingly came to Hong Kong to commit a very serious crime of trafficking in dangerous drugs.

As was said in HKSAR v Sandagdorj Altankhuyag[2014] 1 HKC 2006. It is one thing to commit crime whilst visiting Hong Kong, it is quite another to come to Hong Kong in order to commit crime.

Defendant, you came here organised by D1. You were recruited from Columbia. There was a clear element of planning and organisation by D1, and you knowingly came here to commit these crimes as you owed money to him. I consider this to be a very, very serious aggravating factor.

I had sentenced D1 yesterday for the exact same offence for the exact same drugs and almost identical facts. I found as an aggravating factor for D1 was that he remained in Hong Kong as a Form 8 holder as he was a torture claimant. I enhanced his sentence for that aggravating factor by 18 months, taking into account the offence itself and the content of narcotic. I think appropriate, the same enhancement in your case.

For trafficking in the dangerous drug, cocaine, the leading case is that of Lau Tak Ming. The guideline for trafficking between 400 and 600 grammes is that of 15 to 20 years’ imprisonment as a starting point after trial. You were trafficking in 551.49 grammes of cocaine. Had you been convicted after trial, I would have taken a starting point of 18 years and 9 months’ imprisonment. I enhance that sentence, as there is an aggravating factor that you have came to Hong Kong to commit a serious offence, by 18 months which would make the sentencing point one of 20 years and 3 months’ imprisonment.

Given your early plea of guilty and your assistance to authorities, including the fact that your family and friends safety may have been at risk, I discount that term by 45 per cent. You are therefore sentenced to 11 years and 1 months’ imprisonment.