HKSAR v. HO WAI KAM

HCCC11/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 11 OF 2009

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

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     He had it with him here in Hong Kong, intending to commit an arrestable offence, the details of which are in the public domain and of which you are well aware.

     It must be understood that the prosecution has never suggested that you were a party to his criminal enterprise or that you knew anything of it.  Nonetheless, it goes without saying that your offence is a serious one which attracts a starting point for sentence in what one might describe a normal case as being as large as 12 years’ imprisonment.

     From the outset you admitted your crime.  You told the police of your involvement immediately when they confronted you, which was at a time when you could not have known that your DNA would be found on the handle of the plastic bag that contained the pistol.

     There was scope in your case for a dishonest defence on the basis that you did another a favour without knowing what it was that you carried.  You did not take that course.  You pleaded guilty at the first opportunity on the basis of what your co-accused had told you and not what you knew by the evidence of your own eyes.  That frank conduct sits well with your lack of previous convictions at your age of 50.

     A plea of guilty earns a third discount.  However, further discount is available to you, as you gave evidence against your co-accused and helped secure his conviction.  That is conduct which is to be rewarded.  I judge that you told the truth concerning his knowledge of the pistol.

     You thereby earn an increased discount of 50 per cent.  I also consider it fair to deal with you on the basis of your evidence as to how it came about that you carried the items over the border.  The prosecution does not invite me to do otherwise.  It is thus that mitigation is available to reduce the starting point for your sentence, because you were manoeuvred into carrying the arms and ammunition by your co-accused, and you did not become aware of what it was he had given you until you had crossed the border.

     Your reaction was anger.  Your moral culpability commenced then, because you had a choice, and you chose to help your friend by returning the pistol to him.  It cannot be that you did not wonder why he wanted it in Hong Kong, and it cannot be that you contemplated any use other than a criminal one.

     I appreciate that the help was limited by keeping the items for just one night.  I appreciate the dilemma that you faced.

     Accordingly, I shall take a starting point of 7 years.  That is a very substantial reduction from the normal run of cases, but the mitigation that led to it was substantial.  It is thus that after the 50 per cent discount, the sentence would come out at 3½ years, and that is the sentence I was minded to pass.

     However this morning I have received a letter from a superintendent on behalf of the Commissioner of Police.  I am strongly urged to consider the co-operation and assistance that you have rendered.  They have described your conduct of coming forward and doing what you did as being brave.  It also draws to my attention that appropriate measures are being pursued to ensure your safety and the safety of your family.

     Bearing that information in mind, I am minded to round the sentence down to one of 3 years.  That is, in the circumstances, a lenient sentence.  It is designed to be so for the reasons I have just given.