HKSAR v. OSORIO FABIO ANTONIO

HCCC 91/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 91 OF 2015

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

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COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The defendant, a native of Paraguay, arrived at Hong Kong International Airport on a flight from Sao Paulo, Brazil, via Addis Ababa. He was intercepted by Customs officers. His suitcase was searched and three large bottles of shampoo were found. The ion scan test and a ‘narcotest’ reagent revealed the presence of cocaine in the bottles.

He was arrested and he remained silent. He later agreed to a controlled delivery which turned out to be futile.

In a subsequent interview, he admitted to have full knowledge of the presence of liquid cocaine in the three bottles in the suitcase. He claimed to have done so in order to earn some reward to set off his debt. He claimed that he was coerced and threatened into doing this.

Analysis of the contents of the shampoo bottles found that it contained 3,510 grammes of a liquid containing 1,461 grammes of cocaine. The market value was around HK$3.68 million.

The defendant is now aged 22. He has a clear criminal record in Hong Kong. I am told that he is single, living with his mother and three sisters and earns around approximately HK$1,000 per week. He was the sole provider for his family and he came from a country where the population lives in extreme poverty.

Counsel for the defendant submitted that the defendant was threatened with his life and limbs at risk into commission of the present offence and submitted that the background of this case is similar to Pacaya where the court has adopted a lower starting point and less than the usual enhancement due to the international factor.

That case, another Court of First Instance case, is at its highest for reference purpose, that involves trafficking in an amount of cocaine lower than the present case, namely, 1,156 grammes. Zervos J was of the view that that amount would attract a starting point of 22 years and 9 months but for reasons set out therein, decided to adopt 21 years as the starting point with no enhancement. It was said by the judge that it appears that the defendant’s descent into the crime was a result of his desperation and vulnerability rather than in pursuance of a career.

In my view, those factors alone do not take the case out from an ordinary case of courier bringing drugs on instructions of others into Hong Kong for reward. I do note his predicament as stated in his letter of mitigation but, again, those do not constitute grounds which cause me to depart from what otherwise would be an appropriate starting point reflecting the gravity of this offence.

In sentencing the defendant, I have considered his guilty plea, mitigation forwarded by counsel and the existing tariff.

According to the case of Abdallah, trafficking in cocaine between 1,200 to 4,000 grammes, the tariff is one between 23 to 26 years. The amount of narcotics involved in this case is slightly less than that in the case of HKSAR v Toerab Mohamedajoeb, CACC 278/2010, where the Court of Appeal did not disturb the starting point of 23 years with an enhancement of a further 2 years, whilst remarking that the 23 years for the 1.46 kilogrammes of cocaine lay at the low end of the range.

In this case, I adopt 23 years as the appropriate starting point. The background of how this defendant came to be a courier to deliver the drugs into Hong Kong is, in my view, of little significance and certainly does not lead me to depart from what would have been an appropriate starting point. I enhance it by 2 years due to the international factor.

I consider 25 years’ imprisonment after trial appropriate to the present case. I shall give him the full one-third discount and sentence him to 16 years and 8 months.