HKSAR v. MENDOZA BOLANOS EDGAR ANTONIO

HCCC 300/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 300 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Mr Mendoza, you have pleaded guilty and stand convicted of one count of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The drug in question was 660 grammes of cocaine.

The circumstances of that offending were that you were intercepted within Customs Hall B of Chek Lap Kok Airport on 16 September of 2013, having arrived upon an Emirates Airways flight from Sao Paulo, Brazil via Dubai. But you are not Brazilian; you are the holder of a Guatemalan passport.

Having been intercepted, you were taken to the Queen Elizabeth Hospital, where, after a medical examination, it was thought that you were concealing dangerous drugs within your body.

You were arrested and cautioned, but, upon caution, you told the Customs & Excise officers that you had swallowed nothing and two days later you continued to maintain that you had nothing.

You clearly had ingested something, because over the next eight days you passed in total 96 pellets containing cocaine. The total weight of those pellets, which you had swallowed and carried inside your body, was 1.04 kilogrammes, and, as I have said, in all the narcotic content was 660 grammes.

The retail value in Hong Kong of that drug imported into this country is said to be $1,132,560 in September of 2013.

On your behalf, defence counsel has urged upon me three papers: two from the Immigration and Refugee Board of Canada dated 7 May 2012 and 16 December 2011, and one from the US Department of State for Human Rights and Labour, which suggests that the Canadian and indeed United States authorities accept that the situation in Guatemala is such that it has one of the highest rates of violent crime in the region and that criminal gangs, such as The Zetas, have considerable control over the population and government officers.

It is advanced on your behalf by defence counsel that you were a target of this gang and that you were coerced to traffic in dangerous drugs under threat of violence to your wife and child. He submits that that amounts to duress and, indeed, that was the defence which you originally indicated to this court you would be advancing, if this matter went to trial.

Given that fact, and the amount of time that it has taken to bring this matter to plea, I am somewhat surprised that defence counsel can provide no direct support of that contention. Without it, your submission that you were coerced into trafficking in 660 grammes of cocaine is a bare allegation and no more.

Mr Tibbo has also submitted that the United States of America has taken a different view of its approach to sentencing drug mules and urges upon me United States v Jurado-Lopez, 338 F, 2nd edition, Supp 2d 246, in the United States District Court of Massachusetts, and that this court should take that approach into consideration today.

That cannot be done. The courts in Hong Kong have been dealing with the issue of international importation of dangerous drugs for very many years and see fit to revisit this very grave offence from time to time, in order to ensure that its approach is commensurate with the gravity of the offending and the harm to society.

The courts of Hong Kong take a very dim view of the importation of drugs and, as a consequence, the guidelines set out for the assistance of the High Court indicate that only heavy sentences will follow.

For the importation of 660 grammes of cocaine, in accordance with the guidelines set out in HKSAR v Abdallah [2009] 3 HKLRD 437, the guideline starting point for trafficking after trial is between 600 to 1,200 grammes, and that is 20 to 23 years.

The appropriate starting point is therefore 20 years and 3 months’ imprisonment.

There is also a significant aggravating feature, because you brought these drugs into this country from abroad and, for that international element to this offending, I enhance your sentence by 1 year and 3 months.

I have taken into account all that counsel has urged upon your behalf, Mr Mendoza: the fact that you had no previous record in Hong Kong, your maturity, that you will be serving a significant sentence a long way from home and your family.

But these factors cannot reduce the sentence I have already indicated, as this is a serious crime for which a deterrent sentence is required and only the most exceptional proven personal circumstances will reduce the sentence below the guideline I have mentioned.

Giving you a full one-third discount for plea, even although it was indicated at a late stage, you will go to prison for 14 years and 4 months.