HKSAR v. CASAS WALTER JOSE

HCCC 20/2019

[2019] HKCFI 1946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 20 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty to unlawfully trafficking in a dangerous drug, namely, 2.07 kilogrammes of a solid containing 1.52 kilogrammes of cocaine on 15 March 2018. He pleaded guilty at Eastern Magistracy and admitted the Summary of Facts. He was committed to the Court of First Instance for sentence on 14 January 2019.

On 15 March 2018 at about 3.40 in the afternoon, a Customs officer intercepted the defendant at the arrival halls of Hong Kong International Airport. He had just arrived in Hong Kong on a plane from Sao Paulo, Brazil via Dubai.

He was carrying a black suitcase and agreed it belonged to him. Customs officers found clothes and a blanket inside but nonetheless x-rayed the suitcase. This revealed an image of a suspicious item at the bottom of the suitcase. The bottom was cut open and the 2.07 kilogrammes of narcotics was found inside concealed. The defendant said he did not know what that was.

Customs officers tested the solid and confirmed it was cocaine. The defendant was arrested and cautioned and he denied knowledge. The defendant was later further questioned with the assistance of an interpreter and he said under caution that he arrived in Hong Kong as a tourist and would stay in a hotel. He knew no contact person in Hong Kong because he came on his own. He denied that he would deliver this suitcase to anybody nor did he know its contents. He had found the suitcase on a street in Brazil and took it because it looked so new.

The defendant had a small amount of Argentinian and Brazilian currency as well as US$513. The defendant’s mobile phone was examined and there were some incriminating messages found in Spanish. It involved a conversation about the suitcase and how afterwards they would slash it open and remove “it”. One message said that if there was a search, nothing would happen because it cannot be detected. Clearly, these conversations translated referred to something hidden in the suitcase. There was even a photograph taken of the suitcase in the messages.

A subsequent video-recorded interview was conducted the following day and again under caution the defendant denied any knowledge of the cocaine in the suitcase. He gave an explanation of borrowing money to come to Hong Kong to celebrate his birthday. He repeated that he had found the suitcase at a rubbish bin in Brazil and kept it to carry his belongings in. The reason he had sent the photograph of the case to his friend was to show how lucky he was to have found such a nice case. The defendant now admits and accepts that he was trafficking in that amount of dangerous drugs when arrested. The estimated retail value of the cocaine in March 2018 was $2,088,630.

In mitigation, I have heard that the defendant is from Argentina and now 28 years old. He was living with his father in Buenos Aires. His parents are divorced and he is the second eldest of five siblings. Three of the siblings are still in school. The defendant did attend university but did not ultimately graduate. Before his arrest, he was working as a tattoo artist earning about HK$2,700 a month.

Mr Hemmings has said all he can say on behalf of the defendant. His best mitigation is his plea of guilty. He does give an explanation as to why he would commit this offence, partly in his letter to me and also in the media article. He did it, and it is a familiar explanation, he did it for the money because he was hoping to better his future. He is of ill health and has a congenital hearing problem which has made it very hard for him to find work. He wanted to return to full-time education to continue to educate himself. This offer to carry drugs was made to him a year before he decided to get on that plane. He did it because he was then desperate enough to take on that job.

The other mitigation that is pertinent - I have received a letter on the defendant’s behalf from Father Wotherspoon who works tirelessly to fight international drug trafficking. I will not repeat thecontents of the letter and its attachment but the defendant has given an interview to a large media group in Argentina, revealing his identity including a photograph, and giving specific details of his recruitment to traffic drugs to Hong Kong. It tells of the harrowing experience he has dealt with so far and has yet to come. Father Wotherspoon does stress that this defendant has helped his anti-drug campaign to an extent rarely seen amongst drug-trafficking defendants. This media group has an online readership of about 10 million people and the hope is this frank interview may help to deter others tempted by significant sums of money to travel to Hong Kong with suitcases of drugs.

In addition, the defendant has given a non-prejudicial statement to the police a few months after his arrest with as much detail as he can put down on paper of his recruiter in Brazil and the details of his recruitment. That information is of little assistance to the Hong Kong authorities but they have passed on that information to authorities in Brazil, Thailand and the United States of America. It is always in the public interest to encourage a prisoner to assist in this manner or any manner.

I have referred myself to the authority of HKSAR v Kilima Abubakar Abbas, CACC 143/2016 where in the judgment dated 18 September 2018, the majority of the Court of Appeal said a judge was entitled to afford a defendant a discount of 3 months’ imprisonment for this factor of mitigation, that is, the assistance to Father Wotherspoon. That level of discount is to be regarded as the maximum discount to be afforded in similar circumstances. The Court of Appeal has said that any discount for this factor, if it is to be considered at all, should be no more than a token one.

However, in this case, I am inclined to accept Father Wotherspoon’s letter that this defendant has done that much more than in the usual circumstances. I will afford the defendant a discount of 9 months to be taken off the starting point.

Sentencing Guidelines

The authority of R v Lau Tak Ming & Ors [1990] 2 HKLR 370 set out the Court of Appeal guidelines for trafficking heroin which was held in AG v Pedro Nel Rojas [1994] 2 HKLR(HKCLR?) 69 to equally apply to cases of cocaine trafficking. However, those authorities do not cover such a large quantity as the cocaine here. The authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 gives further guidelines for larger quantities of cocaine. The Court of Appeal has held that where between 1,200 to 4,000 grammes of cocaine is trafficked, then a starting point of between 23 years to 26 years would be appropriate. Here, mathematically speaking, 1,520 grammes of cocaine would attract a starting point of 23 years and 4 months.

There is an aggravating factor here and that is the presence of an international element in that the cocaine was imported by the defendant from South America into Hong Kong. According to the broad guidelines laid down in the Court of Appeal decision of HKSAR v Chung Ping Kun [2014] 6 HKC 106, for the presence of the international element, an offence of trafficking in over 1,000 grammes of cocaine should be enhanced by no less than 2 years. Taking those guidelines into account, the enhancement for the international element in the present case should be 2 years.

Defendant, please stand up. I have considered everything said on your behalf in mitigation. I have considered the facts of the case, your mitigation letter which does show -- I accept it is genuine remorse. I have highlighted the aggravating factor and the mitigating factor of your assistance to Father Wotherspoon. There is also your plea of guilty at the earliest opportunity.

Having considered all of those matters, I will take a starting point of 23 years and 2 months which will be enhanced by 2 years for the international cross-border element. That takes the starting point to 25 years and 2 months. I reduce that by 9 months for your assistance given to Father Wotherspoon’s programme. This reduces the starting point to 24 years and 5 months. You are entitled to a discount of one-third for your plea which reduces that starting point to 16 years and 3 months. For this offence you are sentenced to 16 years and 3 months’ imprisonment.

Do you understand that sentence? Have a seat please.