HKSAR v. HERNANDEZ WARACAO RAFAEL ENRIQUE

HCCC 229/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 229 OF 2017

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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 to one count of trafficking in a dangerous drug and is committed before me for sentence.

On 28 September 2016, the defendant arrived Hong Kong from Sao Paulo, Brazil, and was intercepted by the Customs at the Customs Arrival Hall at the Hong Kong International Airport. A search was conducted on the personal belongings and on the defendant but nothing irregular has been found. The defendant was then brought to the North Lantau Hospital for medical examination and medical check confirmed that there were foreign objects inside the body cavity of the defendant.

The defendant subsequently discharged, in total, 81 pellets of suspected cocaine on eight occasions and the suspected cocaine were later confirmed to be 81 packets containing a total of 779 grammes of a solid containing 641 grammes of cocaine.

The estimated retail value of the cocaine involved is HK$865,469.

The defendant is 35 years old. He is from Venezuela. Mr Beel, counsel for the defendant, submitted that the economy of the country is now under crisis and people are exploiting the people there because of their situation. Before committing the offence, the defendant was working at a bar in Venezuela and he has two young sons but he has separated with the mother of the sons. At the bar he was working, he was offered to carry drugs to Hong Kong for the reward of US$5,000 and, unfortunately, the defendant agreed.

According to Mr Beel, the defendant had to undertake a torturous experience to practise swallowing pellets before he could actually traffic drugs this way to Hong Kong, but as rightly acknowledged by Mr Beel, these factors can hardly be valid mitigating factors for the purpose of sentencing.

The Court of Appeal has laid down tariffs for trafficking drugs in Hong Kong and for trafficking of 600 to 1,200 grammes of cocaine, the starting point for sentencing should be 20 to 23 years’ imprisonment. Besides, the sentence shall be enhanced if there is an international element in it.

In this particular case, I agree with Mr Beel that the appropriate starting point for sentencing should be 20 years’ imprisonment and the enhancement for international element should be 1 year’s imprisonment.

Taking into account the defendant’s guilty plea, the 21 years’ starting point should be reduced to 14 years. I would, however, also take into account the defendant’s participation in Father Wotherspoon’s campaign and make a further reduction of 6 months for that factor.

The defendant is therefore sentenced to 13½ years’ imprisonment.