HKSAR v. APARECIDA RODRIGUES GRAZZIELE

HCCC 55/2016

[2018] HKCFI 571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 55 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is a 25 year-old Brazilian female. On 17 July 2015, she arrived at Hong Kong International Airport on an inbound flight from Sao Paulo, Brazil via Addis Ababa, Ethiopia.  She was intercepted in the transit area at the airport while she was waiting to board a ferry to Macau.  Her suitcase was inspected by Customs Officers who found concealed inside four slabs of cocaine, consisting of 2,978 grammes of a powder containing 1,926 grammes of cocaine.  This was a large quantity of drugs. 

2.  The defendant was charged with the offence of trafficking in dangerous drugs and brought before the Magistrate’s Court after her arrest.  She was eventually committed on 29 January 2016 to the Court of First Instance for trial, having indicated she would plead not guilty to the offence. 

3.  On 10 March 2016, the defendant’s case was fixed for trial before another judge on 19 January 2017 with 5 days set aside and a pre-trial review on 17 October 2016.  It appears that the pre-trial review was re-fixed for 30 November 2016 where it was indicated that the defendant might plead guilty.  Prior to the first day of trial, it was confirmed that the defendant would plead guilty, but the case was re-fixed before another judge because of inquiries that were being undertaken in relation to the defendant’s case.  The guilty plea and the assistance provided by the defendant was confirmed in a letter dated 18 January 2017 from Mr Andrew Bullett, counsel for the defendant.

4.  On 9 February 2017, the case was listed before me for plea and sentence to take place on 9 May 2017 which was later rescheduled for 12 May 2017.

5.  On 12 and 15 May 2017, the defendant pleaded guilty to the offence of trafficking in a dangerous drug.  The case was adjourned in order for the authorities to follow up on matters that were considered likely to have a bearing on the sentence.  This required the authorities to conduct overseas inquiries and therefore an adjournment was granted to 1 September 2017. 

6.  At the hearing on 1 September 2017, the defence sought a further adjournment, which was not opposed by the prosecution, to complete the inquiries that had been undertaken.  The case was adjourned to 2 November 2017.  This was rescheduled to 7 December 2017 by agreement with the prosecution because the inquiries were still outstanding. 

7.  On 7 December 2017, an email dated 2 November 2017 purportedly from overseas authorities about the case was submitted to the Court.  However, it appeared that the Customs and Excise Department had not been involved and as matters had been raised that required verification, the parties adjourned the case to 8 and 13 March 2018 and then to 15 May 2018. 

The admitted facts

8.  After the defendant was arrested, she was interviewed under caution and claimed that a male in Brazil by the name of “Marcelo” gave her a trip to Macau as a gift.  She said he gave her flight tickets and arranged hotel accommodation for her in Macau.  He also sold her the suitcase that she brought into Hong Kong at a very cheap price.  She claimed that she needed the suitcase for the trip and was satisfied that it was in good condition.  She claimed that she did not check it thoroughly. 

9.  As part of the agreed facts, she admits that she was aware that the suitcase contained dangerous drugs when she entered Hong Kong which consisted of nearly 2 kilogrammes of cocaine. 

10.  The defendant also stated in her interview that she was single and that she had worked as an intern to be a real estate agent. She commenced her internship in October 2014 and worked on a 6 percent commission of the sale price for every successful property transaction.  It appears that she did not earn very much.  As a consequence, she had to take up employment as a telephone operator in a shop to supplement her income. 

11.  The defendant stated that she received secondary school education and completed technical training as a nurse.  She claimed she won a trip abroad and arrangements for the trip were made through Marcelo.  She said this was her first time abroad.  She said that she needed a suitcase for the trip and she bought it off Marcelo. 

The defendant’s background and mitigation

12.  The defendant has submitted a letter to the Court in which she acknowledges her involvement in this offence and expresses her deep regret for what she has done. 

13.  The defendant stated that she was born and brought up in Brazil.  Her mother is 45 years old and works as a domestic helper.  She has a younger brother and two younger sisters.  She began work at an early age to help support the family after her father passed away.  She got married when she was 16 years old to a man who was 28 years older than her.  They remained together for 7 years but then separated and she returned to her family for support.  She worked as a nurse as well as doing other jobs to support the family.

14.  She stated that the trip to Macau offered her for the first time in her hard working life a chance to go abroad and see the world.  She stated she did not consider the consequences of what she was doing and was unaware of the harm of the drugs involved, not having any previous involvement in drugs before this offence.

15.  It has been submitted on behalf of the defendant that she thought by making the delivery she could solve her economic difficulties and care for her family. 

16.  It remains that the defendant had committed a very grievous offence.  She has been caught bringing into Hong Kong a very large quantity of cocaine of about 2 kilogrammes and she therefore falls within the upper levels of the tariffs fixed for drug trafficking of cocaine. 

The sentencing principles

17.  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 couriers and 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. 

18.  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.’”

19.  Also with these statements in mind, McWalters J in his judgment went on to explain at §11:

“It is, of course, harder for the courts to ignore the suffering of innocent third persons who might be affected by the long period of imprisonment imposed upon the drug trafficker. But this suffering is not visited upon them by the courts but by the drug trafficker who succumbs to the lure of easy money. The court cannot allow the impact upon third parties to influence it into imposing a sentence less than that which is otherwise appropriate for the crime that has been committed.”

Drug couriers and drug mules

20.  It still remains a very important function of a sentencing court when seeking to achieve individual justice, to know the background of the offender and the circumstances by which the offender got involved and participated in the offence. 

21.  There may be factors that reduce the culpability of the defendant or the extent to which he or she should be punished.  Although in general terms, the greater the grievousness of the offence, the less likely that meaningful mitigation is available. 

22.  In the present case, there are the mitigating factors of the assistance the defendant has rendered to the authorities and her plea of guilty for which she is entitled in the circumstances of this case to a discount of one third.  See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. 

Participating in an anti-drug campaign

23.  The defendant has also 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. 

24.  The issue is what credit should be given to a defendant who genuinely participates in the campaign.  The participation in such a campaign should be genuine and constructive, 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. 

25.  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.”

26.  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.”

27.  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.”

28.  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 he said was “properly within her sentencing discretion”.

29.  See also HKSAR v Osinaga Banegas Maria Isabel, HCCC 219/2017, 9 October 2017, unreported.

30.  I have had submitted to me a statement 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 delineates the efforts of the defendant and her family in communicating to others through social mediums of the perils of drug trafficking and the means by which persons like the defendant become involved. It is clear from the examples of what the defendant has done as explained by Father Wotherspoon that her efforts are genuine and substantial. 

31.  I accept that the defendant together with her family have genuinely participated in the campaign and have made a positive and major contribution to it.  It is on this basis that I am prepared to reduce the defendant’s sentence by 12 months. 

The sentence

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

33.  The tariffs for very large quantities of drugs were addressed in HKSAR v Abdallah [2009] 2 HKLRD 437 where the Court of Appeal held that the guideline starting points for traffickers after trial, subject to enhancement, would be for 1,200 to 4,000 grammes of narcotic content, 23 to 26 years’ imprisonment.  The Court of Appeal explained that the aggravating factors which call for an enhancement of the starting point are: (1) an international element; (2) the trafficker has previously been convicted of trafficking in dangerous drugs; (3) the trafficker is shown to be a mastermind or senior player, such as a financier, in a syndicate; or (4) the offender is shown to have engaged a young person to assist in the trafficking. The Court of Appeal further explained that in such circumstances the enhancement for amounts above 1 kilogramme would not be less than 2 years’ imprisonment in addition to the tariff as fixed.

34.  The level of enhancement for an international element in the trafficking of drugs was further discussed in HKSAR v Chung Ping Kun [2014] 6 HKC 106 were a broad guideline was suggested where the quantity of narcotic content is less than 1,000 grammes.  It was suggested that the level of enhancement for between 500 and 1,000 grammes, is 1 to 2 years.

35.  As I have indicated, the sentencing of the defendant has been adjourned on a number of occasions to allow the authorities to make certain overseas inquiries as a result of assistance provided by her.  As a result of dealing with authorities abroad and through official channels, the inquiries have been delayed or without response. 

36.  I have had submitted to me a detailed account of the assistance that the defendant has provided to the relevant authorities thus far, which appears to be an earnest effort on her part to assist the authorities.  A chronology has been prepared by the prosecution which was submitted on 11 May 2018 which details the inquiries and the results in relation to the defendant’s assistance to the authorities.  However, I am informed that at this stage, the assistance provided by the defendant has not been appropriately confirmed and evaluated and therefore cannot be taken into account in the sentence to be passed on the defendant.  If anything is to arise in the future, there is the procedure of making an application to the executive for any valuable assistance provided to the authorities that could properly be taken into account in adjusting a sentence that has already been imposed.

37.  According to the tariff guidelines, a starting point of 23 years and 9 months’ imprisonment is suggested by way of arithmetical calculation which I will adopt.  I will enhance the starting point for the international element by 2 years.  Accordingly, the enhanced starting point for sentence is 25 years and 9 months’ imprisonment, which I will reduce by one year for the genuine and positive participation by the defendant in Father Wotherspoon’s campaign to 24 years and 9 months’ imprisonment.  This term will be reduced by one-third for the defendant’s guilty plea, thus resulting in a sentence of 16 years and 6 months’ imprisonment.