HKSAR v. HERNANDEZ AGUIRRE MIGUEL ANGEL

HCCC 90/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 90 OF 2015

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HKSAR
v
Hernandez Aguirre Miguel Angel

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Before: Deputy High Court Judge S D’Almada Remedios

Date: 22 April 2015 at 9.58 am

Present: Ms Sabra Lo, SPP Ag of the Department of Justice, for HKSAR
Mr Hanif Mohamed Mughal, instructed by T C Lau & Co, assigned by DLA for the accused

Offence: Trafficking in a dangerous drug (販運危險藥物)

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You have admitted that on 9 September 2014, you unlawfully trafficked in 1,908 grammes of a wet solid containing 1,299 grammesof cocaine. This offence was committed upon your arrival from Brazil into Hong Kong at the Hong Kong International Airportat Chek Lap Kok.

On that day in question, at the customs arrival hall, you were intercepted for a baggage check. Upon search of your suitcase, thedrugs in their liquid form were found in four different shampoo bottles.

The street value of the drugs amounted to HK$2,039,652.

Upon arrest and under caution, you said that your flight or your tickets had been paid for, that you were to bring these drugs fromRio de Janeiro to Hong Kong and upon successful delivery, you would be rewarded with US$10,000.

Defendant, your counsel, Mr Hanif Mughal, has in his usual eloquence mitigated on your behalf, and I have taken into account all thathe has said.

You are 20 years of age and are of clear record. You are Venezuelan and have a 1-year-old son. You worked as a hawker selling clothesin Venezuela and made about US$200 a month of which you used to support yourself and your young brother.

Mr Mughal has said this is not an excuse but that the reason why you committed this offence was because of financial desperation thatyou faced in Venezuela. As a young man with little education and heavy financial burdens, the US$10,000 offered to you seemed likea lifeline to you to assist with your expenses particularly your younger brother’s medical expenses.

As I am sure you now realise, quick, fast money is often illegal and the consequences of this are very serious. For this particularoffence, your counsel recognises that the sentence will be a long period of imprisonment to which I am told you understand and realisethat.

I accept that you were only a courier of the drugs. Nevertheless, for couriers, without you, the drug trade could not flourish.

Your strongest mitigating factor is your early plea of guilty.

Mr Mughal has correctly referred the court to the tariff cases for trafficking in cocaine which is the case of The Queen v Lau Tak Ming and supplemented thereafter by HKSAR v Abdallah Anwar Abbas. The guideline starting point for sentencing traffickers after trial for those trafficking in 1,200 to 4,000 grammes, is a startingpoint of between 23 and 26 years’ imprisonment.

Defendant, in view of the quantity of drugs that you were trafficking in, I take a starting point of 23 years’ imprisonment. Youhad brought these drugs into Hong Kong and therefore there is an international element involved. In accordance with Abdallah, this is an aggravating factor calling for the enhancement of the starting point.

In the recent case of HKSAR v Chung Ping Kun CACC 85/2014, the court laid down enhancement levels for international elements of less than 1,000 grammes. The court held therea broad guideline that between 500 and 1,000 grammes, an enhancement should be one of 1 year to 2 years. In Abdallah, for amounts above 1 kilogramme, the court envisaged that a sentence of not less than 2 years in addition would be appropriate.

In those circumstances, the starting point will be enhanced by 2 years, making the sentencing point one of 25 years’ imprisonmenthad you been convicted after trial. Giving you full credit for your plea of guilty, I apply a one-third discount to that sentence,and in the circumstances you shall be sentenced to 16 years and 8 months’ imprisonment.