HKSAR v. LOPEZ GARCIA, MANUEL ORLANDO

HCCC 140/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 140 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.  The defendant has pleaded guilty to trafficking in a dangerous drug.  The particulars of the offence are that the defendant, on 26 August 2015, at Hong Kong International Airport, trafficked in a dangerous drug, namely 1.71 kg of a powder containing 1.17 kg of cocaine.

2.  The defendant entered his plea of guilty on the first day of trial, having previously indicated in another hearing that he would do so. 

Case history

3.  It is necessary in sentencing the defendant that I set out a brief history of the case. 

4.  On 18 March 2016, the defendant was committed to the Court of First Instance for trial. 

5.  On 20 April 2016, the defendant’s case was listed for a pre-trial review on 11 May 2017 and for a trial on 14 July 2017 with 7 days set aside. Shortly before the pre-trial review, the defence served on the prosecution two expert reports.  One report was unsigned from Dr Hal Brands dated May 2017 about the drug cartel that operates in Mexico, known as Los Zetas.  The other report was signed from Dr Barry Connell dated 10 May 2017 who had conducted a psychiatric assessment of the defendant. 

6.  As a result of this last-minute reliance by the defence on expert evidence, a second pre-trial review was fixed for 25 May 2017.  This time was given in order for the prosecution to make arrangements to have the defendant examined by a government psychiatrist.  Unfortunately, no progress had been made concerning the examination because at the second pre-trial review hearing the defendant terminated the services of counsel who was then representing him.  A mention hearing was fixed for 29 May 2017 to ensure that the defendant had new legal representation.  Mr Trevor Beel, appeared on the defendant’s behalf instructed by legal aid, and it was left for counsel to make appropriate arrangements so that the defendant could be examined by a government psychiatrist. 

7.  It transpired, however, that no agreement could be reached between counsel because the defendant refused to be transferred to Siu Lam Psychiatric Centre in order to be examined by a government psychiatrist.  On 8 June 2017, the case was brought on for mention and the court was informed of the impasse that had arisen.  As a result, a hearing was fixed on 28 June 2017, for the prosecution to make an application for an order under the Mental Health Ordinance, Cap 136, for the defendant to be examined by a government psychiatrist.  Directions were given to the parties for the filing and serving of written submissions and authorities. 

8.  At the hearing on 28 June 2017, the defendant requested to speak to his counsel which was granted.  Afterwards, the court was informed by Mr Beel that the defendant wished to change his plea to guilty.  It was confirmed with the defendant that he understood the nature of the charge and that he wished to plead guilty to it.

Summary of facts

9.  The defendant is a Mexican national of Colombian origin.  On 26 August 2015, he arrived at Hong Kong International Airport, carrying a briefcase which upon examination was found to contain a large quantity of cocaine.  He had started his journey on 19 August 2015 from Mexico City.  He travelled to Santiago, Chile and from there to Rio de Janeiro and then to Sao Paulo, Brazil, where he was given the briefcase to bring to Hong Kong.  He took a flight to Dubai, United Arab Emirates, and from there he took another flight to Hong Kong.

10.  On his arrival in Hong Kong, the defendant was carrying the briefcase.  It was examined by customs officers and a further test proved positive to the presence of cocaine.  Inside the briefcase, in five concealed compartments, customs officers found five soaked cotton pads.  The defendant was cautioned, but he immediately attempted to flee.  After a short struggle, the defendant was eventually subdued. 

11.  The five cotton pads, after chemical extraction, produced a total of 1.71 kg of a powder containing 1.17 kg of cocaine.  The estimated street value of the drugs at the time of the offence was HK$1,749,330.

12.  The defendant agreed to participate in a controlled delivery operation after he had revealed that someone would collect the briefcase from him at Kowloon Harbour Front Hotel.  Customs officers carried out the operation at the hotel and although the defendant did receive a number of calls, no one arrived to collect the briefcase.  The operation was eventually terminated.

13.  In subsequent interviews, the defendant explained his involvement in the case in further detail.  He claimed that because of a failed business venture, he borrowed money from a person whom he could not repay.  The lender threatened him that he and his family members would be killed.  He was told that the debt could be cleared if he agreed to take a trip to Hong Kong and deliver a briefcase.  He agreed to do it because of the threats made to him, and he did not report the matter to the authorities because he feared the persons involved.  He accepted, however, that neither he nor his family had actually been harmed.  He described the harm as “psychological”. His flight tickets were arranged by the lender and he was given the briefcase in Sao Paulo.  He was also given some spending money for the trip.  He accepted during the interview that he tried to flee when he was intercepted by the customs officers because he knew he was carrying something illegal given the circumstances of the case.

14.  The defendant agrees that he knew that he was in possession of dangerous drugs as concealed in the briefcase and that he was bringing the drugs into Hong Kong.

Sentencing a drug mule

15.  In HKSAR v Daresa Mariam Guma, CACC 155/2012, 5 October 2012, unreported, McWalters J (now McWalters JA), giving the judgment of the Court of Appeal, explained that it is a notorious fact that persons from an impoverished background in underdeveloped countries are frequently employed by drug traffickers as drug mules to transport drugs from one country to another and regrettably the persons most readily tempted by this kind of crime are persons who come from desperate circumstances and so are more likely to be willing to assume the risks attendant upon international drug trafficking.  He emphasised that it is for this very reason that the courts will not be swayed by the plight of the trafficker. 

16.  The sentencing guideline cases for drug trafficking have stressed that the gravity of the crime is such that it may result in otherwise mitigating factors having little, if any, weight.  It was explained by the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437 at §§32 and 33, that because of the grievousness of the offence, “a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally”, meaningful mitigation, apart from a plea of guilty, is rarely available.  The Court of Appeal went on to emphasize:

“32. …The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.

33. In this regard, it is worthwhile remembering the way Silke VP expressed some of the considerations to be kept in mind when sentencing heroin traffickers from amongst his concluding remarks in Lau Tak Ming (at p 386):

‘Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight.’”

17.  It still remains, in my view, a very important function of the sentencing court when seeking to achieve individual justice, to know the background of the offender and the circumstances in and by which the offender got involved and participated in the offence.  There may be factors that reduce the culpability of the defendant or the extent to which he or she should be punished. 

18.  When dealing with a drug mule it is important for a sentencing court to know as much as possible about the background of the person involved and the circumstances that led him or her into committing this grievous offence.  It may very well have a bearing on how the court sentences the defendant by recognising matters that may warrant a lenient approach within the sentencing guideline cases. 

The defendant’s background and mitigation

19.  The defendant is 59 years of age.  He is a person of hitherto good character with no criminal conviction recorded against him in his home country of Mexico.  He was married but divorced his wife some time ago.  He has two sons who are 27 and 33 years of age. 

20.  I am informed that the defendant, who was born in Columbia, had come from a reasonably affluent family.  His father was a successful coffee bean trader who had been killed by a gang when the defendant was 29 years of age.  The circumstances of the father’s death led the family to move to Mexico to start a new life.  The defendant had set up a business distributing encyclopedias which appears to have been initially successful but due to the advent of the Internet the business suffered severely.  He tried to keep the business going by borrowing money at an exorbitant rate of interest which increased the debt to the point where he could not repay it.  He was confronted about the debt by associates of the lender who threatened him and his family.  He believed that the associates of the lender were connected to the Los Zetas cartel.  It was at this stage that the associates of the lender suggested that he could clear his debt if he agreed to take a briefcase to Hong Kong.

21.  I have had submitted to me quite a lot of information and material about the defendant’s background and circumstances. 

22.  I have been supplied with numerous letters from the defendant’s family and friends, describing his background and character.  They all speak very highly of the defendant’s personal qualities and character.  The defendant’s two sisters have written letters.  One is a lawyer in Columbia and the other a doctor in Mexico.  They both vouch for their brother’s good nature and good character, and refer to the unfortunate circumstances that led him to commit the offence which they say is completely out of character.

23.  The defendant has also written various letters to the court explaining his circumstances and how he got involved in this offence and expressing his deep regret and remorse.  He explains that he was fearful of the violent disposition of the people that he was dealing with and therefore concerned for the safety of his family, in particular his mother, and this led him to become involved in the offence.  He notes that his mother has since his arrest died of a heart attack which he claims came about because of this case.

24.  I have also been supplied with the reports of Dr Hal Brands and Dr B C Connell. 

25.  Dr Brands discusses in some detail the operations of the notorious and violent drug trafficking organisation located in Mexico, known as Los Zetas.  He describes in detail the brutality and violence of the drug cartel’s activities in Mexico.  It has been submitted that the defendant believed that the persons who arranged for him to bring the drugs to Hong Kong were members of this drug organisation. 

26.  Dr Connell diagnosed the defendant as having developed an Adjustment Disorder which he considered had affected his judgement at the time of the offence.  He attributes the disorder to the stress that the defendant was under as a result of the threats made against him and his family, coupled with the violent death of his father and the trademark violence of the drug cartel, Los Zetas. 

27.  I have borne in mind the matters that had been advanced in the defendant’s mitigation. 

Sentencing principles

28.  On 2 September 2016, the Court of Appeal revised the practice of affording discounts of sentence for guilty pleas in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.  It was noted by the Court of Appeal that the revised practice would not apply in respect of cases in the Court of First Instance where trial dates had already been fixed.  This case was fixed for trial on 18 March 2016 and therefore the previous practice applies.  Under the previous practice, a defendant would usually be entitled to the normal one third discount when the plea of guilty was entered on the first day of trial: HKSAR v Lo Chi Yip and Another [2000] 3 HKLRD 270, 276C-277J; and HKSAR v Ting Chiu and Another [2003] 3 HKLRD 378, [17], [21] to [23].  Accordingly, the defendant will be given the normal one third discount for his plea of guilty.

29.  Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed for heroin in R v Lau Tak Ming [1990] 2 HKLR 370 apply to cocaine.  This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC 342. 

30.  According to the sentencing guidelines for the quantity of narcotic content involved of 1.17 kg of cocaine, the defendant is in the band of 600 to 1,200 g where the guideline starting point for traffickers after trial, subject to any enhancement, is 20 to 23 years’ imprisonment.  According to the narcotic content of cocaine in this case, I will adopt a starting point of 22 years’ imprisonment.  See R v Lau Tak Ming [1990] 2 HKLR 370; HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197. 

31.  The sentencing guidelines also require an enhancement for the international element of bringing drugs into Hong Kong. The level of enhancement for an international element in the trafficking of drugs was discussed in HKSAR v Abdallah [2009] 2 HKLRD 437 where the Court of Appeal explained that the enhancement for amounts above 1 kg would not be less than 2 years’ imprisonment.  The matter was further discussed in HKSAR v Chung Ping Kun [2014] 6 HKC 106 where a broad guideline was suggested where the quantity of drugs is less than 1,000 g.  It was suggested that the level of enhancement for between 500 and 1,000 g, is 1 to 2 years. Accordingly, the starting point will be increased by 2 years to 24 years’ imprisonment.

Assisting the authorities

32.  The defendant assisted the authorities after his arrest by participating in a controlled delivery operation.  I am informed that this involved the defendant attending the hotel where he had been booked to stay.  He was located in a room waiting to be contacted.  Customs officers informed the duty manager of the operation.  Hotel staff were told to contact Customs officers if anyone made inquiries about the defendant.  A call was received by the hotel from a person who spoke English with an accent, making inquiries about the defendant.  It was put through to the duty manager who put the caller on hold while he got instructions from the Customs officers. However, by the time this was done the caller had disconnected the call.  This happened a few times.  Eventually the caller was put through to the defendant. According to the defendant, the caller spoke Spanish with a Mexican accent and inquired of him why he had not arrived at the hotel earlier.  The defendant replied that he had been ill.  The caller further queried why he had not booked into the hotel the day before when he arrived in Hong Kong.  The defendant gave the same answer that he had been ill, whereupon the caller disconnected the call.  I have been informed that there was a delay in mounting the controlled delivery operation because of the unavailability of a Spanish interpreter.  I have also been informed that no recording equipment had been set out to monitor or record any telephone calls between the defendant and those persons who were to collect the drugs. 

33.  Mr Beel, on behalf of the defendant, submits that whilst the controlled delivery operation was unsuccessful, it was in no way attributable to the defendant.  He makes the point that the defendant did assist the authorities and placed himself in jeopardy.  He submits that the defendant by doing so, is therefore entitled to receive a discount to his sentence.  I agree and I will give an appropriate discount to his sentence.  He is already entitled to a one third discount for his plea of guilty and I will increase that by 4 percent for the assistance that he had rendered the authorities to 37.3 percent. 

34.  However, before I leave this subject, it would be remiss of me not to make some general comments about controlled delivery operations.  I regret to say that this is not the first time that Customs have carried out a controlled delivery operation that in all probability would not be successful. 

35.  Drug syndicates have developed a sophisticated level of operation in the transportation of drugs, and the authorities need to respond accordingly.  Drug syndicates sometimes transport drugs with more than one courier to ensure a successful delivery, or have a person accompanying the courier to monitor his or her movements before the drugs are collected.  The whole delivery operation is monitored and checked by syndicate members before someone collects the drugs.  So it is fairly obvious that where the courier has been detained, or there has been a delay or time gap in the normal movements of a person clearing immigration or customs, the syndicate members will be on alert before taking delivery of the drugs.  In the vast majority of cases where controlled delivery operations have taken place by Customs in the cases that have come before this Court, they have been unsuccessful, and simply because it was obvious that the courier had been intercepted.  

36.  The operation in this case was further exacerbated by the delay in securing the services of a Spanish interpreter, the conduct of the operation generally, and the lack of surveillance and recording equipment to monitor communications to and from the defendant.  The operation was not conducted in an appropriate manner to effectively and efficiently address the circumstances of the case.  This seems to indicate to me that Customs need to have far greater training and specialisation in this area if it is to successfully apprehend the syndicate members involved in the trafficking of drugs. 

37.  The international illicit drug trade is becoming more sophisticated and calculating in its methods of smuggling drugs from one place to another.  Unfortunately, there is an endless line of vulnerable and desperate people who are preyed upon by the drug syndicates to act as drug mules.  Law enforcement needs to appropriately respond to the level of sophistication and technology employed by the drug syndicates in smuggling drugs in order to strike at the heart of this international illicit drug trade.

Participating in an anti-drug campaign

38.  The defendant has participated in a campaign that was devised by Father John Wotherspoon where persons convicted of drug trafficking, through internet communications, inform people in their country of origin of the tough trafficking laws in Hong Kong with a view to discourage other people from being used as “drug mules”.  This is a highly commendable campaign, that if it has the effect of dissuading just one person from becoming a drug mule, is all the more worthwhile. 

39.  The issue is what credit should be given to a defendant who genuinely participates in the campaign.  I say genuinely, because it should not be something that a person does as a matter of course or routine, in order to get a discount to his or her sentence. 

40.  Barnes J addressed this issue in some detail in HKSAR v ROMERO CUNAS Liz Evelin, HCCC 403/2016, 28 February 2017, unreported. She was not prepared to give a discount on the basis of the defendant’s initial willingness to participate in the campaign as this was a continuing exercise which needed to be properly assessed at a later stage.  She said:

“25. I appreciate the defendant is truly remorseful and genuinely wishes to assist the campaign by warning others not to fall into the same trap. However, I am unable to gauge the effectiveness of the defendant’s contribution at this stage, on the evidence before me.

26. As this campaign is an ongoing one, and it is believed that the defendant will continue to participate and contribute, the effectiveness of the defendant’s contribution could be properly assessed at a later (post-sentence) stage. As said by the Court of Appeal in Lensa (in para 47, adopting the principled approach in HKSAR v Akinyi Grace Sylvia CACC 324/2015), the assessment of the value of the assistance is something which can be better made by the executive. Bearing in mind that the defendant is looking at a rather lengthy sentence, there is ample time before her release for such an assessment to be made.”

41.  Barnes J however acknowledged that:

“27. I am prepared, in order to give encouragement to this defendant (and other defendants in similar situation), to regard her willingness to contribute to the campaign and her effort in getting support from her family to warn and discourage others to traffic dangerous drug, as a constructive contribution to the Hong Kong Society and be treated on a par as a positive good character for the purpose of sentence.”

Sentence

42.  As I have explained, the narcotic content of the drugs involved warrant a starting point of 22 years’ imprisonment which is to be enhanced by a further 2 years for an international element to 24 years’ imprisonment.  The defendant is entitled to a one third discount for his guilty plea which will be increased by 4 percent for the assistance that he rendered to the authorities in participating in the controlled delivery operation. Accordingly, his sentence will be reduced by 37.3 percent which will result in a sentence of 15 years’ imprisonment. 

43.  I will further discount the sentence by 6 months because of the defendant’s personal circumstances and involvement in this case. The defendant’s personal circumstances and character, to a large extent are reflected by the testimonials on his behalf that I have accepted, the positive contribution that he has made to dissuade others in participating in the drug trade, and the details that he has supplied to the Mexican authorities concerning this case.  I have also borne in mind the matters advanced in mitigation that warrant the discount that I will give.

44.  The defendant is therefore sentenced to a term of 14 years and 6 months’ imprisonment.