IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 447 OF 2016

_________________

BETWEEN

                                                      HKSAR                                                  

                                                         and

                                   RODAS SUAREZ Carlos Hernan                Defendant

_________________

Before: Hon Barnes J in Court

Dates of Hearing: 15 December 2016 and 6 February 2017

Date of Sentence: 28 February 2017

Charge

1.                                   The defendant RODAS SUAREZ Carlos Hernan was charged with one count of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of facts

2.                                   The defendant is a Uruguayan.  On 18 April 2016 he arrived at the Hong Kong International Airport from Sao Paulo via Abu Dhabi .  He was intercepted for Customs clearance.  No contraband was found upon baggage examination and body search.  He was found to have US$6,850, HK$125 and other foreign currencies of small amounts.

3.                                   As internal concealment was suspected he was taken to a hospital in Lautau for examination.  After foreign objects were found inside his body, the defendant was arrested and cautioned in English, where upon the defendant said what was inside him may be cocaine and that he had swallowed 54 pellets in Uruguay .  At first the defendant said he had received US$8,000 as his reward, he later clarified to say the reward was only US$1,000.

4.                                   The defendant later discharged a total of 54 pellets containing what was later confirmed to be 3.26 kilogrammes of a liquid containing 2.14 kilogrammes of cocaine, with a street value of around $3,403,440.

5.                                   At a subsequent video-recorded interview, the defendant gave details of how he became involved in the trafficking of the drug.  In a nutshell, he was introduced to someone and he agreed to bring the drug to Hong Kong for a reward of US$8,000.  He was given US$4,000 with the drug and was promised to be paid the balance upon his return.  His air ticket and accommodation were all pre-arranged and paid for.  He swallowed the drug before coming to Hong Kong .

6.                                   He admitted before the magistrate that he was trafficking the cocaine in this case at the time.

Background and mitigation

7.                                   The defendant is 47 years of age and he has a clear record in Hong Kong .  The defendant is separated from his wife and he used to be a physical trainer earning approximately US$35 per month.  He had attained level 5 in his secondary school education.  

8.                                   Mr Jeffrey Sze, mitigating on the defendant's behalf, informed me that the defendant has an 18-year-old son.  After his separation from his wife he lived with his mother.  He used to work as a trainer in a gym but after he suffered a knee fracture, he could no longer work as a trainer and he committed the present offence.

9.                                   Father John Wotherspoon wrote on behalf of the defendant, informing this Court that the defendant actively supported his campaign to stop drug traffickers coming to Hong Kong from South America .  

10.                               Having regard to what the Court of Appeal had said in the case of HKSAR v Odira Sharon Lensa CACC 56/2016 (at para 50), in that the participation of an inmate in Father Wotherspoon's campaign may vary from inmate to inmate, at the sentencing stage evidence may be required and an enquiry to be conducted so that the sentencing judge can properly assess the involvement of the particular defendant and the value of that involvement to Hong Kong, I decided to hear evidence and hold an enquiry on this issue.

Enquiry relating to the defendant's participation in Father Wotherspoon's campaign

11.                               Father Wotherspoon in his affidavit, which he adopted as evidence before me in court, sets out details of how he had started a campaign in 2013 to urge Columbian and Tanzanian detainees at the Lai Chi Kok Reception Centre (LCK) for offences of drug trafficking to persuade their fellow countrymen not to import drugs into Hong Kong .  Finally one particular Tanzanian agreed to write a letter about how he became involved in drug trafficking and the consequences he had to face after his arrest in Hong Kong .  Father Wotherspoon uploaded the letters onto a website he owns and on another website in Africa .  More than 5,000 views were received within a few days.  In that letter the Tanzanian mentioned the names of 10 notorious drug lords in Tanzania , one of whom was a politician.  Father Wotherspoon learned from other Tanzanian detainees that the letter attracted strong attention in Tanzania .  He also understood that in the following 8 months after the letter was posted there was only one Tanzanian arrested in Hong Kong for drug trafficking.

12.                               Father Wotherspoon even travelled to Tanzania in 2015 to gain support from the families of the detainees and the local media.  Then more and more detainees of different nationalities participated in the campaign and placed letters on his website.  Participants include Mainlanders, Indonesians, Kenyans, Nigerians, Philipinos, South Africans, South Americans, Thais, Tanzanians, Ugandans and Europeans.  Father Wotherspoon bought other websites (in Kenya and Uganda ) to promote the campaign.

13.                               Father Wotherspoon believed some 50 detainees have joined the campaign.

14.                               Before me, Fr Wotherspoon clarified that in 2013 his campaign only targeted Africans.  It was only in late 2014/early 2015, when he was alarmed by the influx of Columbian traffickers that he started a campaign targeting South Americans.

15.                               As to this defendant's participation in the campaign, the defendant in his affirmation gave details of how he was approached by Father Wotherspoon about the campaign and how he agreed to take part to make amends for the crime, without being told that such participation would be a mitigating factor.  He said he had written around 14 letters and he understood all were posted on websites open to the public.  The contents of his letters were in general warning to others not to import drugs to Hong Kong and told them the hardship they will face in Hong Kong if they do so.

16.                               Father Wotherspoon confirmed what the defendant had said about his participation.  Father Wotherspoon told me that he had mistakenly described the defendant as a Columbian on his website and he only corrected the mistake in December 2016 after he was made aware of the error.  Fr Wotherspoon added that the defendant was one of the outstanding participants.  The defendant impressed him as truly remorseful and he had written more letters than any other detainees.  The defendant did so without having in mind to use that as mitigation as he had not even informed Father Wotherspoon of the date of hearing.  Fr Wotherspoon asserted the letters written by the defendant helped to deter Columbians from bringing dangerous drug into Hong Kong since there was not even one Columbian arrested in the year 2016.

My consideration

17.                               As indicated by the Court of Appeal in Lensa ( Para  49), I too 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 .

18.                               Having said that, I need to assess the benefit, if any, this particular defendant has given to Hong Kong by his participation in Fr Wotherspoon's campaign.

19.                               The defendant had written many letters to Fr Wotherspoon, which the latter placed on his website in South America .  Fr Wotherspoon told me that he had to ask the defendant not to write so many letters, and to limit the letters to one a month instead of one a week as Fr Wotherspoon was unable to cope with since the letters were in Spanish and Fr Wotherspoon had to arrange for translation to understand the contents.

20.                               When one reads the contents of these letters (with the aid of translation), they are all fairly brief and mainly described the defendant's feelings while being incarcerated.  While there is a repeated message "Say no to bring drugs to Hong Kong", there is no description of how he came to become a drug courier or warning to others how not to fall into the trap.

21.                               There is no explanation as to why the defendant did not describe in details how he became a drug courier so as to warn others.  He did confirm before me that he was not in fear of any danger to himself or to his family.

22.                               I would add here that nothing turns on the mistaken description by Fr Wotherspoon about the defendant's nationality being Columbian.  The letters were in Spanish and the defendant had addressed his letters to both Uruguayans and Latin-Americans.  These letters could be read by any Spanish-speaking persons who access the website.

23.                               Whilst I appreciate Fr Wotherspoon's elation when he found out that not one single Columbian was caught trafficking dangerous drug into Hong Kong in 2016, I am afraid I cannot accept Fr Wotherspoon's assertion or belief that letters written by this defendant helped in deterring Columbians from bringing dangerous drug to Hong Kong.  There is no tangible evidence before me to support such an assertion or belief.  In fact, as the statistics from the prosecution shows, before the campaign started in late 2014/early 2015, the numbers of Columbians caught are as follows: 3 in 2010, 2 in 2011, 26 in 2012 and 4 in 2013.  These figures show there was already a fluctuation in the numbers which had nothing to do with Fr Wotherspoon’s campaign.  In 2014 there were 10 Columbians caught.  In 2015, bearing in mind the campaign had already been launched, there were 11 Columbians caught, one more than 2015.  Whilst none was caught in 2016, I cannot see the connection between the letters written by this defendant with the decline of Columbian traffickers.

24.                               I accept that the defendant is truly remorseful and has tried to warn fellow Uruguayans and Latin Americans not to bring dangerous drug to Hong Kong by writing many letters, I am unable to assess the effectiveness, if any, of the defendant's contribution to the campaign.

25.                               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 his release for such an assessment to be made.

26.                               I am prepared, in order to give encouragement to this defendant (and other defendants in similar situation), to treat his contribution to the campaign 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

27.                               Trafficking in a dangerous drug is a serious offence.  On conviction on indictment a person is liable to a fine of $5,000,000 and to imprisonment for life.

28.                               The total quantity involved here is large, 2,140 grammes, which fell into the category of 1,200 to 4,000 grammes, with a starting point of 23-26 years: see HKSAR v Abdallah [2009] 2 HKLRD 437.

29.                               There was also an International element involved which amounted to an aggravating factor.  An enhancement of at least 2 years is warranted: again, see Abdallah.

30.                               After considering the circumstances of the present case and the defendant's background, I am of the view that the proper starting point is one of 24 years, with an extra 2 years to reflect the international element.  

31.                               I should add that Mr Sze had referred me to the case of HKSAR v Higgs Fabienne HCCC 423/2015, in which Tong J only increased one year to take into account the international element when the defendant (from South Africa) before him had trafficked dangerous drug with retail value of around HK4.5 million and had also participated in Fr Wotherspoon's campaign.  

32.                               I am afraid I do not see any reason why in this case the enhancement for the international element should be reduced.

33.                               The defendant pleaded guilty at the earliest opportunity and is therefore entitled to a full ⅓ discount.  After the ⅓ discount, the sentence would be one of 17 years and 4 months' imprisonment.

34.                               As for the defendant's contribution to the campaign, which is treated as positive good character for the purpose of sentence, I am of the view that a further discount of 6 months would be appropriate.

35.                               I am aware that the discount given by some judges in the High Court is almost comparable in terms of the percentage given to those who rendered assistance to law enforcement authorities.  I am of the view that in the absence of evidence of positive tangible result (as in the case of this defendant), the discount should not be comparable with actual assistance given to authorities.

36.                               With the further discount of 6 months, the sentence is one of 16 years and 10 months, which is equivalent to a total discount of about 35%.

37.                               For the offence of Trafficking in a dangerous drug, the defendant is sentenced to 16 years and 10 months' imprisonment.

Ms Anna Lai, SC, SADPP, Mr Franco Kuan, SPP and Mr Lenny Cheng, SPP (Ag) of the Department of Justice, for HKSAR

Mr Jeffrey Sze, instructed by Messrs Eric Yu & Co, for the defendant