HKSAR v. LONDONO MONTEALEGRE MARITZA YANETH AND ANOTHER

HCCC 98/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 98 OF 2015

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

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COURT: The 1st defendant had pleaded guilty on the amended indictment to the 1st count of trafficking in a dangerous drug, namely 500 grammes of a solid containing 303 grammes of cocaine, and the 2nd defendant had also pleaded guilty to the 1st count and also a 2nd count of trafficking in a dangerous drug on the same day in the same premises of, namely 738.84 grammes of a powder containing 456.41 grammes of cocaine, 1.82 grammes of a solid containing 0.71 grammes of cocaine, and 12.51 grammes of cannabis in a herbal form.

The facts of the case show that on 1 August 2014, police officers saw the 1st and 2nd defendants leaving Room D of the 6th Floor, 59 Granville Road, Tsim Sha Tsui. They were both intercepted and, inside a handbag carried by the 1st defendant, police officers found a cookie box, and at the bottom of the box concealed by cookies was a transparent resealable plastic bag containing the quantity of cocaine as charged in the 1st count. A search of Room D revealed a quantity of cocaine and cannabis concealed inside a cooking pot in a cabinet inside Room D, and the drugs found inside Room D is the subject matter of Count 2.

The street value of the drugs found, for the month of August 2014, for the cocaine would be to the level of about HK$1,234,158, and as for the herbal cannabis it would be about $1,689.

Also found inside Room D were two sets of electronic scales, resealable plastic bags and a tenancy agreement signed by the 1st defendant which was for a term from 18 April 2014 to 17 October 2014. Also found inside the wardrobe was HK$80,000.

Both defendants are from Colombia and Immigration records show that the 1st defendant came to Hong Kong on 5 November 2013 and was allowed to remain until 3 February 2014. She overstayed, and on 5 February 2014 she surrendered herself to the Immigration Department and she was granted a Form 8 recognizance by the Director of Immigration. So on the date of the offence she was in Hong Kong pursuant to that Form 8 recognizance. The 2nd defendant came to Hong Kong on 7 June 2014 and was allowed to remain only until 18 June 2014.

When cautioned, the 1st defendant remained silent, and the 2nd defendant admitted under caution that all the drugs belonged to him. The 2nd defendant also admitted in a video-recorded interview under caution that on the day when they were intercepted outside Room D, he was on his way to deliver the cocaine in the cookie box to someone in Tsim Sha Tsui. He admitted he had placed the cocaine inside the cookie box and he knew that the drugs was cocaine. He had used the electronic scale inside Room D to weigh the cocaine. He claimed that the HK$80,000 found inside Room D were from profit earned from his legitimate business of selling handbags and shoes and jeans to Colombia. So that was the admitted facts.

It is clear that we have sentencing guidelines well-known to everyone, and in relation to Count 1, the amount of drugs is 303 grammes of cocaine. That would fall into the Lau Tak Ming guidelines for heroin, as correctly pointed by Mr Boyton, the case of Attorney General v Pedro Neil Rojas in 1994, the Court of Appeal had indicated that the guidelines of in Lau Tak Ming for heroin applies equally to that for cocaine. For trafficking in 200 to 400 grammes, a sentence of 12 to 15 years is recommended.

In this case, in Count 1, the amount of cocaine is 303 grammes and I consider an appropriate starting point to be 13½ years, and giving the full discount to both defendants for their plea would bring the sentence down to 9 years’ imprisonment on Count 1.

The matter does not rest there in relation to the 1stdefendant. As Mr Kelly had submitted, in the case of HKSAR v Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206, the Court of Appeal in dealing with a theft case committed by foreign nationals in Hong Kong had indicated that in some cases, commission of an offence by a foreign national who is a holder of a Form 8 recognizance, or a torture claimant, the court may consider that is an aggravating factor when assessing sentence and it is worth noting the words of Macrae J in that case at paragraph 21 of the report where he says, after explaining that the 2nd appellant in that case was a torture claimant, he said:

“Where someone in the position of the 2nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this city’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime. However, it must be recognised of course that there are crimes committed by torture claimants which do not affect the community at large and therefore it is a matter for the sentencing judge to consider in every case.”

Now in this case, it is clear that the 1st defendant came here as a tourist and upon the expiry of her stay, surrendered herself to the Immigration Department, got herself a Form 8 recognizance to remain at liberty in Hong Kong, and it is clear that by her commission of this offence she had abused the hospitality and liberty offered by the Hong Kong Government.

This crime goes to the very essence of Hong Kong’s integrity in the international community. We are constantly fighting a battle against drug trafficking in Hong Kong. Not only do people bringing drugs into Hong Kong, many also, with the granting of their liberty under a Form 8 recognizance, abuse the position by trafficking in Hong Kong. The harm and evil that it causes to our society in Hong Kong is tremendous.

In this case, Mr Boyton has argued that it is a fact that the 2nd defendant who is, perhaps one could call him, her common law husband, although they are not married they do consider themselves husband and wife, that the husband had admitted that all the drugs belonged to him and it was he who put it into the 1st defendant’s handbag.

Mr Boyton says therefore I should not aggravate the sentence because as a wife she had no choice what her husband chooses put it into her handbag, though she knew when it was done that they were drugs.

However, I consider that in the circumstances of this case, it is incumbent upon me to make clear to all the traffickers, or intended drug traffickers out there, that if they abuse their Form 8 recognizance by participating in drug trafficking that they should expect that when the circumstances are justified that they will see an increase in their sentence on top of the sentencing guidelines as laid down by the various Court of Appeal cases for the various drugs.

In this case, I will add 6 months to the 9 years sentence for Count 1 in relation to the 1st defendant for the aggravating factor, because at the end of the day I do give her the benefit of the doubt as to whether she had set out to traffic in Hong Kong when she signed the tenancy agreement or she was influenced by her common law husband, the 2nd defendant.

The sentence in relation to Count 1, I will sentence the 1st defendant to 9½ years, and the 2nd defendant on Count 1 to 9 years.

The 2nd defendant also has an additional count, Count 2, of trafficking. According to the guidelines as laid down in Lau Tak Ming, for the amount of cocaine in Count 2, he would fall into the 400 to 600 grammes, meriting a 15 to 20 year sentence of imprisonment. Considering that the herbal cannabis is of a minimal quantity as compared to the amount of cocaine, I will not seek to add to the sentence for cocaine in the 2nd count.

Having considered that, I consider a reasonable starting point to be 15 years’ imprisonment. Taking one-third off for his plea, that would be 10 years.

I do have to consider the totality principle in relation to the 2nd defendant. Both counts in relation to the 2nd defendant were committed on the same day in the same place. So adding both amounts of cocaine together, the amount of cocaine in the Count 1 and the Count 2, it would give us a total amount of 760.12 grammes of cocaine.

As I said, I would ignore the minimal amount of herbal cannabis for sentencing purpose and, as pointed out by Mr Boyton, in the case of HKSAR v Abdallah [2009] HKLRD 437 for the guideline for cocaine and heroin, trafficking of between 600 grammes to 1,200 grammes is 20 to 23 years’ imprisonment.

The total amount here being 760.12 grammes, I would consider an appropriate starting point to be 20 years’ imprisonment. Then taking one-third off would give us a sentence of 13 years and 4 months.

Therefore, in relation to the 2nd defendant, I would sentence him thus for the 1st count he would go to prison for 9 years. For the 2nd count, he would go to prison for 10 years, 4 years will be served consecutively to the 1st count and 6 years concurrent, making a total of 13 years’ imprisonment.

Addendum to sentence

In relation to the sentence of the 1st defendant, as far as the 6 months is concerned for the aggravating factor, that should have been included prior to the one-third reduction. So I will minus 2 months off from that 6 months.

So the 1st defendant will be sentenced to 9 years and 4 months rather than 9 years and 6 months.