HKSAR v. COZ TUCTO DELIA

HCCC 280/2018

[2019] HKCFI 639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 280 OF 2018

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

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COURT:

Defendant, you pleaded guilty to an amended charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. This plea was entered before the magistrate sitting at the Eastern Magistracy on 3 September 2018. Upon your plea of guilty to the charge, you have been committed here to the Court of First Instance to be sentenced.

Today, you confirmed your plea and admitted the summary of the facts. According to the facts, on 18 November 2017, you arrived at the Hong Kong International Airport on a flight from Peru. When you went through the ‘nothing to declare’ Green Channel of Customs Arrival Hall B for clearance, you were intercepted by customs officers. Ion scan test was conducted on your luggage and it showed a positive result to cocaine. You were, therefore, taken to a room for a body search. During the search, you indicated to the customs officers that you have to excrete and subsequently you excreted 60 plastic bags which contained suspected dangerous drugs. You were immediately arrested and cautioned.

Under caution, you made no response. A Narco test was conducted to the substance in one of the discharged plastic bags with positive result of cocaine. As you were suspected of having concealed other plastic bags of dangerous drugs inside your body, you were sent to the North Lantau Hospital for further medical examination. Preliminary medical examination confirmed that you had foreign objects inside your body cavity and you were, therefore, escorted to the Queen Elizabeth Hospital for further discharge of the dangerous drugs.

Between 18 and 19 November 2017, you have discharged a total of 183 pellets of cocaine in the airport and the two hospitals I mentioned. On 19 November 2017, with the assistance of an interpreter, you admitted under caution that you have brought dangerous drugs into Hong Kong. You stated that you have swallowed about 185 pellets of drugs in Lima on 16 November 2017.

You also said that you were promised that the reward of US$9,000 upon successful delivery of the dangerous drugs and US$1,855 found on you at the time of arrest was the travel expenses given by the person who had given you the dangerous drugs. The person in Peru had taken a picture of you and sent to someone in Hong Kong for the purpose of picking you up in the airport or the hotel. You said you had no information of the person who had given you the dangerous drug in Peru or the one who would pick you up in Hong Kong.

According to the Government Chemist analysis, the total of 183 packets contained 1.82 kilogrammes of a liquid, after drying, containing 1.38 kilogrammes of a solid containing 903 grammes of cocaine.

The total value of the drugs seized was HK$1,672,580 at the time of the offence.

Mr Ian Polson, your defence counsel, has mitigated on your behalf before me today and submitted to me a letter written by you in Spanish. I have been given an English translation of the letter in which you have expressed your remorse and apologised for your mistake. You told me that your children need you and that you are a poor person and you need to see your family and you promise to change your life and to be a better person and you are also dedicated to God.

According to the antecedents statement, you have a younger sister, aged around 45, and a younger brother, aged 38. You are married but you are separated and you have two sons who are now aged 32 and 17, and also two daughters who are aged 26 and 23. You claim that at the time before you left Peru, you were working as a sales lady with a daily income of 15 to 28 Peruvian dollars, which is approximately 35 to HK$47. You lived together with your sons and daughters in a flat in Peru. You have no criminal record in Hong Kong.

It is unfortunate that because of a monetary reward, you succumbed to the temptation to commit the present offence. You did this clearly knowing that you were trafficking in dangerous drugs from Peru to Hong Kong. The only effective mitigating factor is your plea of guilty at the very earliest opportunity. I accept that you are a foreigner in our Hong Kong prison and it has not been easy and it will not be easy for you, but there is case law that provides that being a foreigner facing difficulty in Hong Kong prisons is not a mitigating factor.

I have also heard from Mr Ian Polson that you have assisted Father John Wotherspoon in spreading the message of the danger of taking drugs overseas and spreading this message through the internet through your daughters or family or friends in Peru. This is something which the court greatly appreciates. However, in my judgment, it is not a factor which can be used as a reduction or as mitigating factors from the starting point.

Trafficking in dangerous drugs is a very serious offence in Hong Kong, like many other jurisdictions around the world. The maximum sentence here for trafficking in dangerous drugs is a fine of $5 million and life imprisonment. As I have said, it is very unfortunate that you should venture into this serious offence for a financial reward and for that, of course, you will pay a heavy price as the court in Hong Kong will severely punish those people trafficking in dangerous drugs, and particularly for those people bringing them into Hong Kong.

You are going to face a lengthy term of imprisonment and you will be separated with your family and loved ones for a long time. However, the Court of Appeal in Hong Kong also said that family circumstances play no part in mitigation in serious cases such as trafficking in dangerous drugs.

Defendant, the amount that you have trafficked in the present case was 903 grammes of cocaine. The Court of Appeal has laid down guidelines for trafficking in these amounts in the case of Abdallah [2009] 2 HKLRD 437. In Abdallah, for those traffickers trafficking in 600 to 1,200 grammes of cocaine, had they been convicted after trial an appropriate starting point would be one between 20 and 23 years’ imprisonment.

Given the quantity of drugs that you were trafficking in, had you been convicted after trial the appropriate starting point in this case would be one of 21½ years’ imprisonment. In Abdallah, the Court of Appeal said the enhancement for an aggravating factor should not be less than 2 years’ imprisonment if the amount of narcotic involved was above one kilogramme. In HKSAR v Chung Ping Kun, CACC 85/2014, the Court of Appeal further said that the level of enhancement for dangerous drugs between the quantity of 500 to 1,000 grammes would be between 1 year and 2 years. The amount of narcotic involved in this case is already very close to 1 kilogramme anyway. You have brought those drugs into Hong Kong from overseas, that being an international element calling for enhancement. In my judgment, the enhancement should, therefore, also be 2 years’ imprisonment.

The total starting point for your sentence then, had you been convicted after trial, is, therefore, one of 23½ years’ imprisonment. Your early plea of guilty, which is the only effective mitigation in this case, entitles you to a full one-third discount.

In the circumstances, for this offence, you shall be sentenced to 15 years and 10 months’ imprisonment.