HKSAR v. LI MAN TAT AND ANOTHER

HCCC64/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 64 OF 2009

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

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COURT:  Stand up, please.  I have to sentence you both for trafficking in dangerous drugs.  You have both pleaded guilty to trafficking in the drug ketamine. 

     You, Li Man-tat, you have pleaded guilty to trafficking in 1,681.34 grammes of it.  And you, Ho, Ka-yee, you have pleaded guilty to trafficking in 632.87 grammes.  Even though you have clear records, by now you will both be aware that sentencing in such cases is carried out in Hong Kong following well-known guidelines which are published in reported cases.  Those guidelines depend on the nature of the drug and the weight of it.  Applying the ketamine guideline to this case, the starting point for sentence after trial in respect of you, Li Man-tat, has to be in excess of 14 years, because the guideline amounts run out at 1 kilogram attracting such a starting point.   

     In relation to you, Ho Ka-yee, your starting point is going to be one of - on the guidelines - 12 years. 

     I should just say a little more about the facts than I usually do, because the facts are relevant to the sentences here, especially in relation to the 2nd accused.  It was on the morning of 20 October that the 1st accused went and collected all of the dangerous drugs in question.  Knowing full well what the stakes were, he collected that driving his younger brother’s motorcar and was awaiting instructions as to where to deliver it. 

     The 1st accused’s younger brother was at that time detained in Lai Chi Kok.  The 2nd accused in this case had been that person’s girlfriend sometime before, and she still visited him whilst he was locked up.  20 October was the day for such an arranged visit.  If it had not been, the 2nd accused would not be here in the jeopardy she is.

     What happened was that with the drugs on board his brother’s car the 1st accused picked up the 2nd accused and off they went to Lai Chi Kok.  Outside the reception centre there is a store where you can purchase things that inmates would like.  The 1st accused stopped there, got out, and went to make some purchases.  It was just shortly before he did that that he produced the drugs to which the 2nd accused has pleaded guilty possessing for trafficking and handed them to her, asking her to hold them for him.  The other drugs to which he has pleaded guilty lay in the footwell of the car on the passenger side.  They were wrapped in plastic bags.  The two bags that he handed to his female passenger were silvery ones, and one of them had been opened.  It is not possible to tell why on the facts that he wanted her to hold the two that he gave her, rather than all of them or the other ones.  It may be because one of them was opened.  It may be because they looked more suspicious than the ones that were just in ordinary plastic bags. 

     But the fact is that the 2nd accused took the packets.  She looked inside, she realised what it was, and voluntarily agreed to hold them for the short time that he was going to be away.  She very honestly has not tried to hide the fact that she knew from the circumstances and from what had been said in the phone call that he had made in the car that he was going to deliver those drugs to somebody else.

     It is thus the case that the 1st defendant attracts the application of the guideline in the normal way.  In his favour it can be said that he made immediate admissions and that he indicated his plea of guilty to this court at an early stage.  It is also right that it is clear from the facts that he realised he had got his co-accused into trouble, and he did his best to save her and mitigate the consequences for her of his having involved her.

     For 1.6 kilograms, after trial, I have taken a starting point of 15 to 16 years.  With a clear record, the frank plea of guilty and those matters I have just adverted to, on this plea of guilty today I will take a starting point of 15 years, and I will reduce that by a third.  Therefore the sentence for the 1st accused on the Count 1 of the indictment is one of 10 years’ imprisonment.

     When it comes to the case of the 2nd accused, I will depart, as I am invited to by counsel, from applying the guidelines strictly.  It is not often one departs from the guidelines in drug cases because matters personal to defendants do not justify it.  It only happens in unusual and exceptional cases, and it nearly always happens because of the way a person becomes involved in the crime. 

     I wish to make it absolutely clear that I appreciate the gravity of the case against the 2nd defendant because - and I am repeating myself deliberately - she knew it was ketamine, she knew it was going to be delivered, and she voluntarily agreed to hold it even though it was for a short time.  On the other hand, this was never her enterprise.  It was the 1st accused’s enterprise.  It was chance that she was there in the car.  The prosecution accept the plea on the basis that she was only a temporary keeper.  She was not part of his plan.  She did not play a part that was in any way essential to it or even of any significant help.  He could just as easily have leant across and hidden the two silver bags in the glove compartment of the motorcar.  What she did, and the wrong she did, it was wrong - was not done for reward.  It arose out of the peculiar circumstances of the case. 

     So in those circumstances I will depart from the guidelines because that conduct I judge simply is not worth a starting point of 12 years’ imprisonment.  It is difficult knowing just where to pitch it if one departs from the guideline.  The gravity of the conduct - because this a grown up 24-year-old woman, knowing full well what she is doing at the time - has to be met with some significant period of imprisonment.  Before actually fixing the starting point it is right that I relate something about her character, not that it has any significant effect on the finding of that starting point.   But it does help her that the peculiar facts of her case are set in the context of her appearing to me, on the evidence before me, to be an otherwise decent young woman.  She did not do well at school, left after Form 3, became a waitress.  But she went to evening classes and applied herself, and qualified herself with Form 5 qualifications.  The district councillor writes well of her from his acquaintanceship with her.  Her former colleagues at work were moved to write in on her behalf.  She is a lady who is religious, and I am told that there is proof of evidence in existence detailing it all, that she has done voluntary work on behalf of a church. 

     In all of the circumstances, based on the peculiar facts of the 2nd accused’s involvement, I take a starting point in her case of 6 years.  I shall reduce that by a third for the plea of guilty.  The result is a sentence of 4 years’ imprisonment for the 2nd accused.