COURT: I don’t propose to keep you in suspense. You are going to prison for 12 years and 4 months. When I’ve left court, your lawyers will explain to you when you are likely to be released, bearing in mind the rules about remission of sentence and the length of time you’ve been in custody.
You were caught at Hong Kong International Airport bringing into Hong Kong a not inconsiderable quantity of cocaine, which was found in a secret compartment of a backpack in the suitcase which you’d checked in. I ignore for the time being the small amount of herbal cannabis found in your sling bag, which I accept was for your own use.
You will have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in drugs. The guidelines are based on the amount of drugs involved, although the court doesn’t look at their weight as a whole. It focuses on the narcotic content of the drugs. The weight of the narcotic content of the cocaine which you were smuggling into Hong Kong was 850 grammes.
The guidelines have been reduced since your arrest, and they now say that the appropriate range for someone who is convicted of trafficking in between 500 and 1,500 grammes of cocaine is 16 to 20 years’ imprisonment. That is the appropriate range for someone who has been convicted after pleading not guilty.
So if the approach was a purely mechanical and mathematical one, you would be looking at a sentence, or should I say a notional starting point for sentence, of about 17 years’ and 5 months’ imprisonment.
Although you’ve always accepted that this cocaine was in your suitcase, you have never before today accepted that you’d known that it was there. When you were interviewed by the police, you said that you hadn’t asked your niece what was in the backpack, and that you hadn’t asked her that because you trusted her.
You didn’t tell the police in so many words that you hadn’t known what the backpack contained, but that was what you must be treated as having said to them. Nor did you come clean later on that you’d known that you were smuggling drugs into Hong Kong. Here I am referring to the statement you gave to Father John Wotherspoon in support of his well-known campaign.
In that statement, you talked of not having recognised the backpack, that you had fallen into a trap set by your niece who was also your secretary, and you added that you had never imagined that this could happen to you. Again, you didn’t expressly say in so many words that you hadn’t known that the backpack contained drugs, but that is clearly what you meant.
In order to decide whether your plea of guilty should result in your conviction, I had to be satisfied that you do now accept, despite your previous statements, that you knew at the time that you were bringing dangerous drugs other than the herbal cannabis into Hong Kong. I only convicted you when you confirmed that to be the case.
I turn to the role you played in this operation to smuggle cocaine into Hong Kong. You told the police that you had delivered items for your niece several times without any problem. You said today that these deliveries had had nothing to do with drugs, and on that basis, despite some misgivings, I am prepared to treat you as a courier who happened to be caught on the only occasion you had knowingly done something like this.
You say that you didn’t know that the drug you were smuggling into Hong Kong was cocaine, and you say that you
didn’t know that the narcotic content of the cocaine was as much as it was. But the courts have said that that is the risk that couriers such as yourself take.
Having said that, in the hierarchy of roles of those who traffic in dangerous drugs, you are, as a courier, to be placed in the lowest category, by which I mean the category of least culpability.
On the other hand, what you did involved bringing this cocaine into Hong Kong across international borders (what is sometimes called “the international element”). I do not enhance the notional starting point for sentence specifically to reflect that in the light of a decision of the Court of Appeal a few years ago.
The Court of Appeal said in effect that the aggravating feature of bringing drugs into Hong Kong across international borders should be regarded as relevant to the offender’s role and culpability when identifying the appropriate starting point, rather than as a free-standing aggravating factor calling for a separate enhancement of the starting point. To do otherwise could result in double-counting, by which I mean sentencing someone twice over for the same thing.
The guidelines were set for defendants who were involved in trafficking at the lowest level of culpability, namely, as a courier or storekeeper. Bearing in mind the weight of the narcotic content of the cocaine that you were smuggling into Hong Kong, and the level of your culpability, albeit factoring into that the international element, I propose to take 18 years’ and 6 months’ imprisonment as the actual starting point for the sentence in your case. I do not propose to increase that to reflect the small amount of herbal cannabis you had in your sling bag for your own use.
I turn to the mitigating factors. First and foremost, there is your plea of guilty, which was intimated to the Magistracy well before the date on which you actually pleaded guilty and were committed to the High Court for sentence. That entitles you to have your sentence discounted by at least one-third.
In his written submissions, Mr Percy said that your plea of guilty indicates remorse on your part. In the light of your previous statements, I do not believe that to be the case. You pleaded guilty, knowing that you were likely to be convicted if you pleaded not guilty, in order to get the
discount which a plea of guilty attracts. But that does not mean that you should not get the full discount which a plea of guilty attracts.
I appreciate that you will be serving your sentence in Hong Kong, very far from your home in Mexico. I know that the Court of Appeal has said that “drug traffickers from abroad, importing drugs into Hong Kong, ...will receive no sympathetic consideration whatsoever on account of ...their incarceration some distance from home”.
I shall loyally follow that, but the fact remains that unlike many other prisoners, you may not have many fellow prisoners who speak your mother tongue, and you won’t have the opportunity of regular visits from members of your family.
Finally, I have received a letter from Father John. As a foreigner, the impact of your detention on would-be couriers is likely to be greater than that of locals, as you could paint a more vivid picture for those back home of the consequences of being caught at Hong Kong’s borders with hard drugs.
Father John has put your story on his NGO’s website and on social media in the hope that it will deter others from making the sort of mistake you did. The problem is that the terms of your communication altered the message which Father John’s campaign is intended to get across - that message being to bring about a greater awareness of the punishment which those who deliberately bring drugs into Hong Kong can expect.
Your communication merely warned of the dangers of being caught up in a criminal enterprise if you agree quite innocently to bring something into Hong Kong surreptitiously for someone you trust. In these circumstances, your counsel does not suggest that there should be any further reduction in your sentence for your participation in Father John’s campaign.
For all these reasons, the notional starting point in your case should be reduced to an actual sentence of 12 years’ and 4 months’ imprisonment.
Standing back and looking at that sentence as a whole in the light of the guidelines which I must of course respect, it is, I think, a fair, just and balanced sentence in both the circumstances of the case and your own personal circumstances.