HKSAR v. CARDOSO CASTRO HUDSON

HCCC 321/2019

[2020] HKCFI 2759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 321 OF 2019

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

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COURT: The defendant has pleaded guilty before a magistrate to one count of unlawfully trafficking in a dangerous drug, namely 1 kilogramme of a solid containing 679 grammes of cocaine. He is committed before me for sentence.

On 29 December 2018, the defendant entered into Hong Kong at the Hong Kong International Airport on a connecting flight on United Arab Emirates from Dubai, his journey having originated in Sao Paulo, Brazil.

At the Hong Kong International Airport, the defendant was intercepted at the customs arrival hall for clearance. The defendant was suspected of internal concealment of substance. He was escorted to the North Lantau Hospital and there he discharged in the toilet one packet of suspicious substance. The defendant was then transferred to Queen Elizabeth Hospital where he discharged further packets from his body. In total, the defendant discharged 100 packets containing the relevant drugs described in the relevant charge against him.

The estimated street value of the drugs was HK$1,035,000.

Ms Nisha Mohamed helpfully submitted a written mitigation for the court’s reference. In the written mitigation, the background of the defendant is set out.

The defendant is 28 years old. He is a Brazilian national. He is single although he has a 2-year-old son with his girlfriend. He lived with his girlfriend and his son in Suriname before his arrest. He is educated to high school Year 12 in Brazil. His family members include his father, mother and a sister. Prior to his arrest, the defendant worked as a freelance miner which meant that he has no fixed income. In 2015, the defendant went to Suriname to find a job and worked as a computer maintenance worker. By mid-2016, the defendant started working in the mining industry.

In the last few years prior to the defendant’s arrest, the work in the mining industry declined substantially and there was hardly any work. He had a very hard time trying to make a living to support his family. Being unable to find any gainful employment, he started borrowing money from loan sharks. As a result, he owed a debt of US$1,000 to the loan sharks.

In December 2018, a man approached the defendant, asking for repayment of his debts. He told the defendant that if the defendant promised to travel to Hong Kong to traffic drugs, his debts would be wiped off. As the defendant was unable to pay, he agreed.

Ms Mohamed submitted a letter written by the defendant himself to the court. The defendant stated that he has now realized his mistake but it is too late. The defendant has lost everything and he realized that he will not see his family for a very long time because of committing the present offence. The defendant’s father was in the military in Brazil and the defendant thinks that he has been a complete disappointment to his family, especially to his father. He will use his time in the prisons to study. He will learn English and Cantonese and he has made enquiries regarding a technology programming course in prison.

Trafficking in dangerous drug is a very serious offence. People who committed this offence must face a very long term of imprisonment. The Court of Appeal has laid down the tariff in respect of the sentence of this offence. Regarding trafficking in cocaine, this court should consider the Court of Appeal cases HKSAR v Lau Tak Ming and HKSAR v Abdallah. Under the said tariff, for trafficking in a quantity of 600 grammes to 1.2 kilogrammes of cocaine, the starting point for sentence should be 20 to 23 years’ imprisonment.

As submitted by Ms Mohamed, there is one aggravating factor in this case, namely, international element. The defendant has brought dangerous drugs inside Hong Kong from other country. For this factor, according to the Court of Appeal case in HKSAR v Chung Ping Kun, the level of enhancement is 1 to 2 years’ imprisonment. I note the background of the defendant and the circumstances under which he committed the present offence. However, the tariff laid down by the Court of Appeal is for general deterrence. Factors like clear record, young age or financial circumstances are not valid mitigating factors.

In the circumstances, what I will do is to adopt a lower starting point within the range of the tariffs. I will adopt a starting point of 20 years’ imprisonment with an enhancement of 1 year for international element. The total sentence, if convicted after trial, would be 21 years’ imprisonment.

Taking into account the defendant’s guilty plea, I will accord a full discount of one-third to the overall sentence and reduce the sentence to 14 years’ imprisonment.