HKSAR v. ROMERO CUNAS LIZ EVELIN

HCCC 403/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 403 OF 2016

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REASONS FOR SENTENCE

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Charge

1.  The defendant ROMERO CUNAS Liz Evelin was charged with one count of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of facts

2.  The defendant is a Peruvian female.  She arrived in Hong Kong from Amsterdam on 16 February 2016 and was detained as internal concealment was suspected.  The defendant was taken to the North Lantau District Hospital where it was confirmed that she had foreign objects in her body cavity.  The defendant was transferred to the Queen Elizabeth Hospital and she subsequently discharged 51 packets which later confirmed to contain 700 millilitres of a liquid containing 466 grammes of cocaine.  The estimated retail value of the cocaine was HK$500,018.

Background and mitigation

3.  The defendant is 27 years of age.  She has no criminal record here in Hong Kong or in Peru.  

4.  In mitigation, Mr Samson Hung (who represented the defendant originally) informed me that the defendant is single and lived with her widow mother and 4 brothers and an elder sister in Peru.  2-3 months before the offence, she stopped studying at the University due to her inability to pay the tuition fees.  She had already received an ultimatum from the university that a place would not be held for her should she still failed to pay the fees.

5.  Mr Hung also informed me that the defendant’s elder sister suffered from burnt as a result of a fire and needed the defendant’s assistance at home.

6.  The defendant worked as a part-time worker but did not earn enough money for either the living expenses or to pay the university fees, she therefore committed the present offence due to financial difficulties.

7.  The defendant wrote to me, expressing her remorse.  She lamented that instead of solving her financial problem, trafficking the dangerous drug to Hong Kong had in fact resulted in worsening the problem she faces.  She asked this Court to have mercy on her when imposing the sentence.

8.  Father John Wotherspoon, who was present in court on 30 November, wrote on behalf of the defendant, informing me that the defendant actively supported his campaign to stop drug traffickers coming to Hong Kong from South America.

9.  Having regard to what the Court of Appeal had said in the case of HKSAR v Odira Sharon Lensa CACC 56/2016 (at para 50), in that the participation of an inmate in his campaign may vary from inmate to inmate, at the sentencing stage evidence may be required and an enquiry to be conducted so that the sentencing judge can properly assess the involvement of the particular defendant and the value of that involvement to Hong Kong, I decided to hear evidence and hold an enquiry on this issue.

Enquiry relating to the defendant’s participation in Fr Wotherspoon’s campaign

10.  I conducted the enquiry on 6 February 2017, when the defendant was represented by Mr Philip Ross of counsel.

11.  Briefly stated, Fr Wotherspoon, who is a prison chaplain, started a campaign in 2013 in which African inmates wrote letters which he put on his website to inform people in Africa Hong Kong’s tough trafficking law, with a view of discouraging people to be used as “drug mules”.  He started a similar campaign aimed at people in South America round about the end of 2014 or the beginning of 2015, after being alarmed at the number of Columbians being caught trafficking dangerous drug to Hong Kong.

12.  The defendant wrote a total of two letters to Fr Wotherspoon, one in March 2016 and the other in September 2016, giving details of how she became involved in the trafficking of dangerous drug to Hong Kong.  She described how a friend lured her to fall into the trap and how she was threatened by people to swallow the drug to bring to Hong Kong. Fr Wotherspoon posted these letters (which were written in Spanish) onto his website.

13.  The defendant also testified that she had written to her sister K back in Peru and asked her to post messages on her (K’s) Facebook account and also the defendant’s Facebook account (with the password provided to K) to warn friends and viewers not to be used as drug courier.  She had disclosed the name of the person (Alejandro) involved in the drug deal to her sister.

14.  K sent an email to the Consulate of Peru in Hong Kong in December 2016, attaching a Notice which she claimed she and others had posted on social networks to warn others against drug trafficking.  The contents of the notice warned ladies of different ages and classes not to be fooled by this Alejandro.

15.  The defendant also received a document entitled “Brief” from the Peruvian Consulate.  This Brief was dated 15 July 2016 and it contained the signature of 49 persons.  These people all said they knew the defendant who was a person of “irreproachable conduct, without problems, cooperating with the neighbourhood, student and worker” and that she was the only support and companion to her 65-year-old mother.

16.  Of these 49 persons, 4 wrote separately on the defendant’s behalf.  They all related how they came to learn about what had happened to the defendant through the defendant’s sister K or the other sister B. They were urged to and did warn others about trafficking dangerous drug to other countries.  Some were encouraged to visit a website (set up by Fr Wotherspoon) where the defendant’s letters could be found.

17.  Fr Wotherspoon described the contribution by the defendant and her family as significant.  Though according to the statistics provided by the prosecution, the number of Peruvian traffickers had increased from 2 in 2015 to 5 in 2016, he believed that the defendant’s effort had assisted in stopping Columbian traffickers coming to Hong Kong since there was not even one Columbian arrested in 2016.

18.  Fr Wotherspoon recognized that the defendant should be punished for the harm she had done to Hong Kong, nevertheless, he submitted that the good the defendant had done for Hong Kong – by preventing the entry of drug mules from South America to Hong Kong – should be acknowledged.

My consideration

19.  As indicated by the Court of Appeal in Lensa (Para 49), I too applaud Fr Wotherspoon’s efforts in disseminating information on Hong Kong’s drug trafficking laws.  Measures such as his that inform and discourage those in third world countries who are vulnerable to exploitation by the international drug trafficking syndicates are of great benefit to Hong Kong. Those that participate in such measures are likewise acting in the interests, and for the benefit, of Hong Kong.

20.  Having said that, I need to assess the benefit, if any, this particular defendant has given to Hong Kong by her participation in Fr Wotherspoon’s campaign.

21.  The defendant wrote two letters detailing her involvement in the trafficking.  These two letters were posted on Fr Wotherspoon’s website. There was no designated website (for the time being) for different countries of South America so her letters could be read by any Spanish speaking persons who accessed the website.

22.  On the evidence before me, apart from the two letters written by the defendant, her sister K has actively disseminated information against drug trafficking through the neighbours and social media in Peru.

23.  According to the statistics provided by the prosecution, the number of Peruvian caught in 2016 was 5, more than any of the previous years (4 in 2013, 1 in 2014 and 2 in 2015).  As the campaign targeting South American started in late 2014/early 2015, the increased figure does not indicate the efforts of the defendant and her family succeed in lowering the number of traffickers coming to Hong Kong from Peru.

24.  Fr Wotherspoon stressed that the defendant’s effort contributed to the campaign’s success in not having one single Columbian coming to Hong Kong in 2016.  I am afraid I cannot accept Fr Wotherspoon’s assertion or belief.  There is no tangible evidence before me that the defendant’s letters help in deterring Columbian traffickers coming to Hong Kong as Fr Wotherspoon claimed.  In fact, as the statistics from the prosecution shows, before the campaign started in late 2014/early 2015, the figures are as follows: 3 in 2010, 2 in 2011, 26 in 2012 and 4 in 2013.  These figures show the fluctuation which had nothing to do with Fr Wotherspoon’s campaign in South America.  Further, as the defendant wrote her first letter in March 2016 and her second one in September, it is hard to see how her letters had the effect of deterring Columbian traffickers to come to Hong Kong in the same year: 2016.

25.  I appreciate the defendant is truly remorseful and genuinely wishes to assist the campaign by warning others not to fall into the same trap.  However, I am unable to gauge the effectiveness of the defendant’s contribution at this stage, on the evidence before me.

26.  As this campaign is an ongoing one, and it is believed that the defendant will continue to participate and contribute, the effectiveness of the defendant’s contribution could be properly assessed at a later (post-sentence) stage.  As said by the Court of Appeal in Lensa (in para 47, adopting the principled approach in HKSAR v Akinyi Grace Sylvia CACC 324/2015), the assessment of the value of the assistance is something which can be better made by the executive.  Bearing in mind that the defendant is looking at a rather lengthy sentence, there is ample time before her release for such an assessment to be made.

27.  I am prepared, in order to give encouragement to this defendant (and other defendants in similar situation), to regard her willingness to contribute to the campaign and her effort in getting support from her family to warn and discourage others to traffic dangerous drug, as a constructive contribution to the Hong Kong Society and be treated on a par as a positive good character for the purpose of sentence.

Sentence

28.  Trafficking in a dangerous drug is a serious offence.  On conviction on indictment a person is liable to a fine of $5,000,000 and to imprisonment for life.

29.  The total quantity involved here is 466 grammes, which fell into the category of 400-600 grammes, with a starting point of 15-20 years: see AG v Pedro Nel Rojas CAAR 15/1993, adopting the guidelines in R v Lau Tak Ming [1990] HKLR 370.

30.  There was also an international element involved as the drugs were imported, which amounted to an aggravating factor.

31.  After considering the circumstances of the present case and the defendant’s background, I am of the view that the proper starting point for trafficking the 466 grammes of cocaine is 16 years, with an extra 6 months to reflect the international element (see HKSAR v Chung Ping Kun CACC 85/2014).  The starting point is therefore one of 16 ½ years.

32.  The defendant tendered a timely plea and is entitled to a full ⅓ discount. With a full ⅓ discount, the sentence will be one of 11 years.  

33.  As for her contribution to the campaign, which is treated as positive good character for the purpose of sentence, I am of the view that a further discount of 6 months would be appropriate.  I am aware that the discount by some judges in the High Court is almost comparable in terms of percentage given to those who rendered assistance to law enforcement authorities.  I am of the view that in the absence of evidence of positive tangible result (as in the case of this defendant), the discount should not be comparable to actual assistance given to authorities.  The discount of 6 months would make a total discount of about 36%, a net discount of about 3.03% on top of the ⅓ discount.

34.  For the offence of Trafficking in a dangerous drug, the defendant is sentenced to 10 years and 6 months’ imprisonment.