HKSAR v. INZA MADUENO ANDREW ANTHONY

HCCC 337/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 337 OF 2016

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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 before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular, the type and quantity of the dangerous drug concerned, the background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. On 24 February 2016, the defendant arrived at Hong Kong by a flight from Peru via Amsterdam. As he was suspected of having internal drug concealment, he was sent to a hospital for medical examination. Medical examination revealed that there were foreign objects inside his body cavity. Eventually the defendant discharged a total of 52 pellets containing what was later confirmed to be 700 millilitres of liquid containing 455 grammes of cocaine.

Upon being arrested, under caution, he said a friend had asked him to take drugs to Hong Kong, upon a promised reward of US$4,000 if successful.

The market value of the drug was about $488,000.

I was told that the defendant is now 22 years of age. He was studying in a university back in Peru for the subject of engineering. He has a clear record both in Peru and in Hong Kong.

In mitigation, learned counsel, Mr Marray, urged me to note that this is the first time the defendant had committed the offence. He pleaded guilty at the earliest opportunity. Mr Marray stressed that the defendant is a young man who had worked hard and should have a bright future. His mother passed away when he was 18 years old and his father soon deserted him and his younger brother. To pursue his study, he had to work part-time. When his brother entered the university, he has to shoulder part of his fees.

He soon ran into financial difficulties and it was in these circumstances, he resorted to borrow money. A person who purported to be a moneylender made arrangement for them to meet. That person did not appear but instead two women appeared. They asked the defendant to take drug to Hong Kong and a reward of US$4,000 was promised. The defendant foolishly agreed and thus committed the present offence. When he arrived in Hong Kong, he had telephoned the man in Peru; he indicated he wished to withdraw but he succumbed to the pressure exerted by the man.

The defendant wrote a letter in which he indicated his regret and remorse. Mr Marray also produced a letter of Father John Wotherspoon. The court was told that the defendant had joined the campaign launched by the Father of warning people, in particular in Peru, against being cheated and exploited by drug syndicates. The defendant provided information to his family and his brother helped spread the message through social media.

The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in a case of trafficking in cocaine, the guidelines in Queen v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm. In Lau Tak Ming, it was suggested that for a case of trafficking in heroin if the narcotic content is between 400 to 600 grammes, a sentence of 15 to 20 years’ imprisonment should be considered.

I have to take into account the international element in the case. For this aggravating feature, I am of the view that the starting point should be enhanced by 12 months. Having considered the whole circumstances, in my judgment, an ultimate starting point of 17½ years is appropriate.

The defendant is entitled to a one-third discount for his guilty plea, his previous clear record and the remorse he has expressed.

As regards what the defendant had done in the campaign launched by Father Wotherspoon, I have had regard to the case of HKSAR v Akinyi Grace Sylvia, CACC 324/2015. In that case, the Court of Appeal recognised that efforts of such nature amount to assistance in combating drug trafficking. Even if not rendered to the authorities, the government and the community benefit from it ultimately. The campaign of Father Wotherspoon should be praised. In that case, the Court of Appeal did not interfere with an otherwise rightly decided sentence and held that it would be a matter for the Executive to determine whether assistance of this kind by serving prisoners should be rewarded by use of the Executive power of clemency.

The defendant in the present case is not in exactly the same position as he is not yet a serving prisoner and the court is not considering whether to interfere with a sentence already imposed.

A proper sentence should be imposed to reflect the criminality of the offence the offender had committed. Whilst the effort of the defendant should be recognised, it is not the same situation as a defendant who had provided valuable information against a specific crime which had led to a fruitful result.

In my judgment, the matter should best be left with the Executive to assess the degree of contribution and its effectiveness if the defendant continued to participate in the campaign, and decide whether such assistance should be rewarded by use of the Executive power of clemency.

Having considered the whole circumstances, including what learned counsel has said on the defendant’s behalf, I am of the view that one-third discount is the extent of discount the defendant is entitled to in this case.

By reason of the matters aforesaid, you are sentenced to an imprisonment term of 11 years and 8 months.