HKSAR v. OSINAGA BANEGAS MARIA ISABEL

HCCC 219/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 219 OF 2017

_______________

_______________

________________________

REASONS FOR SENTENCE

________________________

The case background

1.  The defendant is a 25-year-old Bolivian female who on 15 September 2016 was found to be in possession of 2,320.2 g of cocaine narcotic in her luggage when she arrived in Hong Kong on an international flight.  An examination of her suitcase by Customs officers revealed suspicious images when it was x-rayed.  It was emptied but was found to be unusually heavy.  The Customs officers then cut open the suitcase and found the cocaine in a concealed compartment.  She was arrested and cautioned in English and responded by saying “Don’t know”.  She was searched and found in her possession was US$990 and some South American currencies.

2.  The defendant subsequently participated in a video recorded interview under caution.  Through a Spanish interpreter she stated that she was a wedding decorator in Bolivia earning around US$1,000 a month.  She explained that she was on a business trip, travelling alone, and intending to stay in Hong Kong for 2 days.  Her intention was to take a train to Shanghai where she would buy some decoration accessories to be used in wedding events in Bolivia.  She was then intending to return to Bolivia from Hong Kong.  She said that she had spent US$1,550 for her flights and planned to spend another US$3,000 buying decoration accessories.  Her trip had been arranged through a person she had known for about a month, who was her travel agent.  His name was “Tito”.  He gave her an address in China where she could buy the decoration accessories, although the address in an email stored on her mobile phone was in Guangzhou.  She explained that 15 days prior, Tito had accompanied her to a market in Bolivia to buy a suitcase.  He told her that the suitcase was big and light as well as cheap, and she bought it on his recommendation.  She said that at the time she purchased the suitcase it appeared normal.  She did not notice that it was unusually heavy.  She said that she put her personal items into the suitcase and denied knowing that there was a concealed compartment with cocaine inside.

3.  The defendant now admits that at the time of the offence she was trafficking in the cocaine.  There were suspicious WhatsApp messages in her mobile phone between her and a person by the name of “Tito Gaucho” on 27 August and 14 September 2016.

4.  The street value of the drugs at the time of the offence was around HK$4.7 million.

The defendant’s background and mitigation

5.  The defendant is a Bolivian national.  She is married and has a daughter aged 5.  Prior to this offence, she was living with her husband and daughter in Bolivia where she operated her own business as a wedding planner.  Her parents are alive and she has two younger brothers.  She is the breadwinner of the family and also supports her parents and younger brothers.  She attained an education at an institution for design and decoration, and as a wedding planner she earned about US$1,000 a month.  She has submitted a letter to the court in which she expresses her deep remorse and sorrow for what she has done.  She explains that she borrowed money to alleviate her financial problems, and in order to settle the outstanding balance, she accepted taking the trip.  The defendant’s husband has also submitted a letter in which he pleads for leniency on behalf of his wife.

6.  I have been provided with an official certificate from the Bolivian police, which I accept as true, that the defendant has no criminal record in Bolivia.

7.  Mr Neil Mitchell, for the defendant, makes a number of points in mitigation.  He first submits that the amount of money found on the defendant at the time of her arrest was relatively small and would indicate that she had not been paid to traffic the drugs.  Although, according to his submissions, the defendant was reluctantly lured into transporting the suitcase to Hong Kong because of an outstanding debt.  I do not find any substance to this submission.  He also explains on behalf of the defendant that she had been running a family business as a wedding planner.  The business ran into financial difficulty and she borrowed US$10,000.  She was unable to keep up the repayments and the full amount owing was demanded from her.  She was introduced to a third party who is the person referred to as Tito who offered to write off the debt provided that she took the suitcase to Hong Kong which she reluctantly agreed to do.  He submits that the defendant believes that she may have been set up and induced to take out the loan to lure her into agreeing to traffic the drugs.  He submits that the defendant’s family are devastated by what has happened and that they, particularly her daughter, will miss her support and guidance in the years to come.  Unfortunately, for the defendant this counts for very little in light of the grievousness of the offence.  This was a very serious case of drug trafficking involving a very large quantity of cocaine. 

8.  Mr Mitchell also submits that the defendant informed Customs officers of the arrangement to take the suitcase to the Tin Tin Guesthouse in Tsim Sha Tsui but no controlled delivery was arranged.  It appears that arrangements had to be made for a Spanish interpreter and this resulted in the investigation being delayed.  Subsequently, the defendant cooperated with Customs officers in a record of interview where she provided details about the case to them.  She gave the password to her mobile phone and she identified the telephone numbers of Tito.  I am informed that whilst she denied knowledge of the drugs in the suitcase, it was because she feared the consequences.  In the circumstances, I cannot see any basis to give the defendant a reduction to her sentence for cooperation with the authorities.

Sentencing a drug mule

9.  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. 

10.  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.’”

11.  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. 

12.  For this reason, 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. 

13.  However, this needs to be considered in light of the recent comments by Macrae JA in HKSAR v Chin Li Ying, CACC 12/2017, 29 September 2017, unreported.  In giving the judgment of the court, he stressed the importance of applying a consistent sentencing policy in relation to drug trafficking offences, and that a sentencing court should not dramatically depart from the appropriate guidelines for no good reason. 

Sentencing principles

14.  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. 

15.  According to the sentencing guidelines for the quantity of narcotic content involved of 2,320.2 g of cocaine, the defendant is in the band of 1,200 to 4,000 g where the guideline starting point for traffickers after trial, subject to any enhancement, is 23 to 26 years’ imprisonment.  According to the narcotic content of cocaine in this case, I will adopt a starting point of 24 years’ imprisonment.  I have rounded off the term of imprisonment so that it falls within the starting point as calculated arithmetically which to be exact is 24 years and 2 months’ imprisonment.  See R v Lau Tak Ming [1990] 2 HKLR 370; HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197. 

16.  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. 

17.  The defendant pleaded guilty to the offence of trafficking in a dangerous drug at the earliest opportunity in the Magistrate’s Court.  She is therefore entitled to a full one third discount to her sentence for having done so.  See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. 

Participating in an anti-drug campaign

18.  The defendant has participated in a campaign that was initiated by Father John Wotherspoon where persons convicted of drug trafficking, through internet and other forms of 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 will hopefully dissuade others from becoming drug mules in the future. 

19.  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. 

20.  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.”

21.  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.”

22.  In HKSAR v Odira Sharon Lensa, CACC 56/2016, 22 September 2016, unreported, McWalters JA, giving the reasons for judgment of the court, discussed Father Wotherspoon’s campaign and the benefit that may be provided to a defendant for participating in it.  He said:

“49. … we applaud Fr Wotherspoon’s efforts in disseminating information on Hong Kong’s drug trafficking laws. Measures such as his that inform and discourage those in third world countries who are vulnerable to exploitation by the international drug trafficking syndicates, are of great benefit to Hong Kong. Those that participate in such measures are likewise acting in the interests, and for the benefit, of Hong Kong.

50. But, it is apparent from Fr Wotherspoon’s testimony that the participation of an inmate in his campaign may vary from inmate to inmate. Some may be more involved than others and for many the involvement may be a lengthy on-going one where the relatives of the inmate are enlisted to carry forward the campaign in the inmate’s home country. At the sentencing stage this may require evidence to be called and an enquiry to be conducted by the sentencing judge in order to properly assess the involvement of the prisoner and the value of that involvement to Hong Kong. Assessing the value to Hong Kong of the prisoner’s actions, within the framework of Fr Wotherspoon’s campaign, is a task which, in our view, the executive will generally be better equipped than the Court of Appeal to perform.

51. Consequently, we are of the view that the recognition that should be given to a serving prisoner for post-sentencing participation in Fr Wotherspoon’s campaign is a matter that is better determined by the executive.”

23.  Also, more recently, Macrae JA in HKSAR v Echendu Chijioke Nick,CACC 372/2016, 14 August 2017, unreported, giving the reasons for judgment of the court, although concerned with the issue of forfeiture during the sentencing process, commented on the judge’s sentence where she gave the applicant a 6-month discount for his participation in Father John Wotherspoon’s campaign which his Lordship noted was “properly within her sentencing discretion”.

24.  I have had tendered in evidence an affidavit from Father Wotherspoon in relation to the defendant’s involvement in his campaign.  He states that the defendant has been very supportive of the campaign and has also engaged her family in assisting in conveying the message of the harsh realities and the catastrophic consequences of getting involved in smuggling drugs into Hong Kong.  He spells out the efforts that the defendant has engaged in communicating through social mediums the perils of drug trafficking and the means by which persons like herself become involved.  It is clear from the examples of what she has done as exhibited to Father Wotherspoon’s affidavit that her efforts are genuine and extensive.  I accept that she is genuinely participating in the campaign and has made a positive and major contribution to it.  It is on this basis that I am prepared to reduce her sentence by 9 months. 

25.  In addition to the cases I have referred to, I have been provided with other cases where the sentencing court has given a discount to the sentence of the defendant for his or her participation in Father John Wotherspoon’s campaign ranging from 6 months to 1 year.  See HKSAR v Higgs Fabienne,HCCC 423/2015, 7 September 2016, unreported, per L Tong J; HKSAR v Rodas Suarez Carlos Hernan, HCCC 447/2016, 28 February 2017, unreported, per Barnes J. 

26.  Barnes J in Rodas explained that she treated the defendant’s contribution to the campaign as a constructive contribution to Hong Kong society that could be treated on a par with positive good character for the purpose of sentence.  She reasoned that in the absence of evidence of any positive tangible result, the discount should not be comparable with actual assistance given to the authorities. 

27.  It seems to me that a defendant’s participation in the campaign is a reflection of his genuine remorse for the crime that he has committed and desire to assist the authorities to prevent others from making the same mistake.  It is the display of remorse and cooperativeness with the authorities that a sentencing court can recognise within its sentencing discretion.  To this end, it needs to be established on evidence that the defendant has genuinely participated in the campaign, and that the participation has been positive and substantial. 

The sentence passed on the defendant

28.  As I have already indicated, the narcotic content of cocaine in the present case warrants a starting point of 24 years’ imprisonment. There is an international element involved in this offence because the defendant was importing drugs into Hong Kong.  The sentencing guidelines provide that an international element is an aggravating factor calling for the enhancement of the starting point where for amounts above 1 kg should not be less than 2 years’ imprisonment.  Accordingly, the starting point is enhanced by 2 years to 26 years’ imprisonment.  As I have stated I will reduce her sentence by 9 months for her genuine, and positive and substantial participation in Father Wotherspoon’s campaign which will result in a starting point of 25 years and 3 months’ imprisonment. 

29.  As the defendant is entitled to a one third discount for her plea of guilty at the earliest opportunity, the defendant is therefore sentenced to 16 years and 10 months’ imprisonment.