HKSAR v. MICHALAKOPOULOS THEODOROS

HCCC 265/2019

[2021] HKCFI 323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 265 OF 2019

______________

______________

__________________________________

REASONS FOR SENTENCE

______________________________

REASONS FOR SENTENCE

1.  The defendant was convicted by a jury of one count of trafficking in dangerous drugs and now stands to be sentenced. Particulars of the count are that he on 30 November 2018 unlawfully trafficked in 1,957 grammes of cocaine.

SUMMARY OF FACTS

2.  The defendant was stopped by Customs officers when he was going through the Green Channel at the HKIA after flying into Hong Kong from Sao Paulo, Brazil via Dubai.  A search was conducted of one of the suitcases that he had with him and drugs were found hidden inside.  He is being charged with trafficking in those drugs.

3.  The prosecution case is that the circumstantial evidence would allow the jury to draw the only reasonable inference that the defendant knew that there was some kind of dangerous drugs inside the suitcase that he was carrying, and that he was importing them into Hong Kong.

4.  The defendant’s case is that he had agreed with someone to receive a bag in Sao Paulo and to bring it to Hong Kong to someone. He was promised US$2,000 for his effort.  He had no idea that there were any dangerous drugs inside in suitcase, which was brought to his hotel room in Sao Paulo by a woman.  The defendant did look inside and saw only clothes.  The defendant was also reassured by those who asked him to make the delivery that there was nothing illegal inside the suitcase.

5.  The only issue in this case is whether the prosecution can prove to the jury so that they are sure that the defendant knew that there was some kind of dangerous drugs inside the suitcase when he brought it into Hong Kong.

6.  Since there is no direct evidence to prove that the defendant knew that there was some kind of dangerous drugs inside the suitcase, the prosecution ask the jury to infer from the circumstantial evidence that the defendant had such knowledge.

7.  There is, however, direct evidence in the form of the defendant’s denial when he was being investigated, when he said that he did not know about the dangerous drugs inside the suitcase, both in the preliminary enquiry and in the video recorded interviews, as well as in the defendant’s evidence given in court.

8.  By their verdict, the jury disbelieved the defendant and found that they were able to draw the inference that the prosecution had requested them to draw, and convicted the defendant of the offence.

PREVIOUS CONVICTION

9.  The defendant is of previously clear record.

MITIGATION

10.  The defendant is 60 years old.  He was born in Greece and finished his high school education there.  The defendant emigrated to Montreal in 1977 and has been living there up to the time of his arrest.

11.  The defendant produced a document from the Canadian authorities stating that he has no criminal record in Canada.

12.  In his evidence‑in‑chief, the defendant said he is a professional registered bus driver.  In the winter, he worked as a school bus driver earning $400 Canadian dollars per week.  In the summer, he would work as a tour bus driver for six months, and his salary, which included tips, would be much higher.  He said that in 2017 he earned roughly about $48,000 Canadian dollars as a tour bus driver.

13.  The defendant has been involved in divorce proceedings and he said in evidence that all his assets had been frozen by the Canadian authorities pending resolution of those proceedings.

14.  The defendant has two children.  His son was living with the defendant’s wife when the defendant left Montreal, working as an auto mechanic. The defendant’s daughter was a college student at that time.  The defendant has been unable to get in touch with them after his arrest.

15.  The defendant himself has seven siblings, six of them reside in Canada and one in Greece.  One of his brothers is a lawyer in Québec.  The defendant’s father is 98 years old.

16.  Mr Raffell in mitigation pointed to the fact of the defendant’s good character, suggesting that he got sucked into this drug trafficking venture.  The defendant has always been informed about the likely sentence and that he is aware that the court’s hands are tied. Nevertheless, Mr Raffell wishes the court to bear in mind the defendant’s age and the possibility that he will be spending the rest of his best days behind bars in a foreign country, and to be as lenient as possible when sentencing him.

SENTENCE

17.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is a fine of HK$5,000,000 and imprisonment for life.

18.  The sentencing tariffs for trafficking in heroin in the case of R v Lau Tak-ming and Others [1990] 2 HKLR 370 were held to be applicable to the trafficking of cocaine in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342.

19.  The tariffs were later supplemented in the case of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437; CACC 304/2008 to deal with larger quantities of narcotic contents.  For trafficking of 1,200 to 4,000 grammes of cocaine, the range of starting point is 23 to 26 years’ imprisonment.

20.  An arithmetical application of the tariffs to 1,957 grammes of cocaine would lead to a sentence of 285 months’ imprisonment after trial.  This is the starting point I adopt.

INTERNATIONAL ELEMENT AS AN AGGRAVATING FACTOR

21.  It was held in the said case of Abdallah that it will be an aggravating factor calling for the enhancement of the starting point where an international element is involved.

22.  In the case of HKSAR v Chung Ping Kun, CACC 85/2014, the Court of Appeal laid down broad guidelines for the level of enhancement for cases of trafficking below 1,000 grammes of narcotics involving an international element.  For between 500 and 1,000 grammes, the enhancement range is one to two years.

23.  In the present case, the defendant travelled from Montreal to Washington to Sao Paulo to pick up the suitcase and then flew via Dubai to Hong Kong to deliver the suitcase.  I find that what the defendant had done amounted to actively assisting and facilitating the importation of the drugs into Hong Kong, which also involved foreign drug traffickers in furthering the drug trade.  The aggravating factor of there being an international element has been made out[1].

24.  Although the cocaine involved is more than that considered in Chung Ping Kun, bearing in mind the lengthy sentence that the 60‑year‑old defendant is already facing, I find that the level of enhancement should be 24 months and no more.

25.  The post‑enhancement sentence is, therefore, 309 months’ imprisonment.

26.  Despite the sympathy I have for the defendant, I find that there are no mitigating circumstances to warrant a discount in sentence.

27.  The defendant is sentenced to 309 months’ imprisonment.