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DCCC 615/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 615 OF 2016
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HKSAR |
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v |
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LI KAR HAI, NAOMI |
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| Present: |
Ms Ranee Khubchandani, PP, of the Department of Justice, for HKSAR |
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Mr David Boyton instructed by Y.K. Lau & Chu, for the defendant |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
REASONS FOR SENTENCE
1. Li Kar Hai, Naomi you have pleaded guilty to one charge of trafficking in 49 tablets containing a total of 1.30 grammes of methamphetamine, 1.29 grammes of 3,4-methylenedioxyamphetamine, and 1.37 grammes of 3,4-methylenedioxymethamphetamine and traces of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. In summary on 20 March 2008 your ex-husband returned from China to Hong Kong by train when he was intercepted by the police in the arrival hall of the Hung Hom Train Terminal. The police found inside his rucksack the 49 tablets and charged him with trafficking in a dangerous drug.
3. Almost two weeks later you went to the police station and told the police that you bought the tablets, believing them to be a dangerous drug, and that because you had an argument with your ex-husband you put the drugs in his rucksack. You were then arrested for trafficking in a dangerous drug and placed on police bail.
4. You however failed to answer your bail on 8 July 2008 having left Hong Kong for Canada on 3 June 2008. You were re-arrested when you returned to Hong Kong on 23 May this year. During a video-recorded interview you confirmed you were the one who bought the dangerous drugs and placed them inside your ex-husband’s rucksack.
Mitigation
5. In passing sentence I have carefully considered everything said on your behalf by Mr Boyton. Mr Boyton explains that you bought the tablets believing they were dangerous drugs not for your own consumption but to get your ex-husband into trouble. This was because he was taking drugs with another woman in Hong Kong. You therefore put them in his rucksack knowing he would be going to Hong Kong[2].
6. I am told your divorce was finalised sometime in 2008. I take into account you have a clear record.
Sentencing guidelines
7. The offences having been committed in 2008 you are to be sentenced according to the guidelines applicable at that time unless the guideline or tariff has become lower by the day of sentence[3].
Methamphetamine
8. The methamphetamine was not in the refined crystallised form of methamphetamine hydrochloride, commonly called “ice”. The guidelines applicable at the time for ice were those established in Attorney General v. Ching Kwok Hung[4] (as explained in HKSAR v Capitania Edwin F[5]). In HKSAR v Yip Wai Yin [6]the Court of Appeal held that the guidelines applied irrespective of whether the ice was crystalline or tablet form.
9. Where the quantity of narcotic was up to 10 grammes sentence upon conviction after trial was between 3 and 7 years imprisonment. The revision of the guidelines in 2014 did not affect sentence where the quantity of narcotic was up to 10 grammes[7].
10. 3,4-methylenedioxyamphetamine, abbreviated as MDA and 3,4-methylenedioxymethamphetamine, abbreviated as MDMA, are commonly known as ecstasy.
11. The guidelines applicable for ecstasy at the time of the offence were those established in HKSAR v Lee Tak Kwan[8]. Where the quantity of narcotic was up to 25 grammes sentence was entirely in the discretion of the court. The revision of the guidelines in 2008 substantially increased the sentence for small quantities[9].
Mistaken nature of the drugs
12. Relying on the decision in HKSAR v Yip Wai Yin[10], Mr Boyton submits that a mistaken belief as to the nature of the drug may be taken into account as a mitigating factor.
13. The Court of Appeal stressed that the availability of this factor depended on the court being provided with evidence of such belief and that it would be rare to accept a bare assertion. No such evidence has been provided. Mr Boyton explains that you bought the tablets believing they were dangerous drugs. You did not take dangerous drugs and did not know what dangerous drug you were actually buying. You were therefore not mistaken as to the nature of the dangerous drugs you were buying.
Starting point
14. For the purpose of sentence I ignore the traces of ketamine. I agree with Mr Boyton that the “combined” approach to sentence is appropriate. The most potent drug is methamphetamine. Taking into account your clear record I adopt a starting point for trafficking in 1.30 grammes of methamphetamine of 3 years imprisonment which I enhance by 3 months imprisonment to take into account the 2.66 grammes of ecstasy.
Aggravating features
15. The importation of drugs into Hong Kong from the Mainland has long been treated as an aggravating feature[11]. The fact you caused this to happen by using your ex-husband, as an innocent agent, is also an aggravating feature. In the circumstances I enhance the starting point by 6 months to 3 years and 9 months imprisonment.
Timely plea of guilty
16. You are entitled to credit for pleading guilty however your plea is not a timely plea having been re-arrested almost 8 years after you failed to answer police bail. As Stock JA observed in HKSAR v Chow Tak-fuk[12]:
“…“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”
17. You told the police you thought you no longer needed to return to Hong Kong because you had heard that your ex-husband’s case had been brought to an end. I do not accept this explanation for your failure to answer bail and return to Hong Kong.I have no doubt that when you confessed to enable the release of your ex-husband you knew full well that you would be prosecuted and not simply that your husband would be released and nothing would happen to you.
18. The usual range of discount afforded to a defendant who absconds is about 20% to 25%[13]. Mr Boyton submits a discount of 25% is appropriate. This was the discount given in Chow Tak Fuk. In that case the appellant absconded before arraignment and was not re-arrested until he returned to Hong Kong almost 11 years later.
19. Taking into account you absconded for almost 8 years and was only re-arrested when you returned to Hong Kong, a discount of 12 months is appropriate, which is equivalent to just over 25% discount. You are convicted and sentenced to 2 years and 9 months imprisonment.
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(D. J. DUFTON)
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District Judge |
[1] Cap 134.
[2] On hearing this mitigation I queried what act of trafficking had been committed by the defendant. Mr Boyton referred to paragraph 9 of the admitted facts that the defendant caused the drugs to be imported into Hong Kong. Ms Khubchandani replied the act of trafficking was the importing of the dangerous drugs into Hong Kong which was caused by the defendant supplying the dangerous drugs to the ex-husband, an “innocent agent”, knowing the dangerous drugs would be carried into Hong Kong. The court wishing to be satisfied the admitted facts amounted to an offence the parties asked for time to research the matter further. In his second and third written submission Mr Boyton submitted no offence was committed by the defendant in Hong Kong and therefore the proceedings were a nullity. Ms Khubchandani maintained her position the defendant had caused the drugs to be brought into Hong Kong by importation. During the course of submission Mr Boyton said the defendant maintained her plea of guilty and withdrew the application. Having considered the written and oral submissions I was satisfied the defendant caused the drugs to be imported into Hong Kong, which act was justiciable in Hong Kong.
[3] See HKSAR v Tsoi Shu & others [2005] 1 HKC 51 at §39.
[4] [1991] 2 HKLR 125.
[5] CACC 28/2004.
[6] [2004] 3 HKC 367 at §§12-14. Also see HKSAR v Ng Yau Kau & another CACC 374/2007 where on appeal no complaint was made that the trial judge had wrongly applied the guidelines where the methamphetamine was contained in tablets. In HKSAR v Lai Kwok Hung CACC 564/2002 the guidelines were also applied where the methamphetamine was contained in tablets.
[7] See HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
[8] [1998] 2 HKLRD 46.
[9] See HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1. The date of judgment was 6 June 2008. The date of the offence was 20 March 2008. Under the guidelines in Hii Siew Cheng for quantities up to 1 gramme is within the sentencer’s discretion. For quantities between 1 and 10 grammes a sentence of 2 to 4 years is appropriate whereas under the guidelines in Lee Tak Kwan a sentence of 2 to 4 years was appropriate for quantities between 25 and 400 grammes.
[10] [2004] 3 HKC 367 at §§15-17.
[11] See for example HKSAR v Chung Ping Kun CACC 85/2014.
[12] CACC 428/2004.
[13] See HKSAR v Lo Kam Fai CACC 374/2014 at §32.
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