HKSAR v. Li Kar Hai, Naomi

DCCC 615/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 615 OF 2016

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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.