COURT: The defendant was charged with the offence of trafficking in a dangerous drug. The drugs involved is 0.65 kilograms of cocaine. The defendant pleaded guilty and admitted the facts.
What had transpired was that the defendant arrived in Hong Kong Airport on the day in question from Colombia via New Zealand. Upon his arrival he was stopped at the Customs for baggage examination. The Customs officer then found the cocaine inside the defendant’s rucksack.
The estimated value of the cocaine was close to HK$1 million.
The defendant is a Colombian national, now around 44 years of age. He has four children, the youngest being 12. He used to be a security guard and had also worked on construction sites in Colombia. The defendant has a clear record here in Hong Kong.
Mr Marray for the defence pointed out in mitigation that the defendant was now remorseful and had been co-operative with the authorities. He has provided all the information he knew to the interviewing officer.
I do accept that the defendant was co-operative with the authorities as he was willing to be interviewed and had given the contact mobile phone to the Customs officer for follow-up investigation.
However, counsel took it one step further and asked this court to consider the issue of duress for the purpose of mitigation. Counsel had referred me to several parts of the video interview in an attempt to establish the basis of duress. I have taken time to go through the whole interview. What the defendant had stated in the interview was that he was somehow forced to take the drugs to Hong Kong because someone was threatening to harm his daughter and/or sister.
Mr Marray made it clear the defendant would not testify and shall simply rely on what was disclosed in the video interview.
This court accepts that duress can be a mitigation even where it fails as a defence. However, the court must be cautious in granting any reduction for this reason and the factual basis must be clearly established before the court can act on it. In the present case, counsel admitted that the defendant could not have relied on duress as a defence because he had not taken the chance to avoid the threat. I have to agree that must be the case.
As I see it, even if I would ignore some of the questionable points in the account given by the defendant, such as the lack of particulars of the person allegedly making the threats, the defendant apparently could have reported the matter to the authorities for the protection of the daughter and/or sister.
I also fail to see that the defendant was genuinely concerned that the threat would be carried out if he could not accomplish the task. Frankly, from what the defendant had disclosed in the interview, it seemed to me to be more a problem of money, the accumulation of debts and the promise of financial reward, that the defendant was finally motivated to take the risk.
I cannot accept that duress has been established to the degree that the sentence should be reduced accordingly in this case.
The authority for the sentencing of this type of drug is Lau Tak Ming.
In view of this amount and with the obvious international element, I shall adopt a starting point of 21 years. I would grant fully the one-third discount because of the defendant’s plea and his full co-operation, that means 14 years, but apart from that I do not think I could lower this term further. There was nothing exceptional about his background or health condition, and as I said, I find no sufficient basis to support a reduction based on duress.
Hence, the sentence is 14 years.