HKSAR v. Lee Kok Boon and Another
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HCCC156/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO. 156 OF 2009 -----------------
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--------------------------------- Transcript of the Audio Recording --------------------------------- COURT: Stand up, please. I have to sentence you both for trafficking in dangerous drugs. The drug was ice. You, D1, had 477 grammes of it strapped to your body. You, D2, had 479 grammes of it strapped to yours. You are both Singaporeans who were separately and individually recruited, both taking up an offer to wipe out debt in return for carrying drugs. The organisers put you together and flew you to Hong Kong where you were both supplied with 500 gramme packets which you were to carry to Tokyo. You were stopped at our airport. The Summary of Facts makes clear that you had each agreed to carry drugs for a reward of 800,000 yuan before you met each other and that when the drugs were handed over to each of you, that was done separately, albeit on the same occasion. The summary also reveals, however, that when the time came to leave the hotel for the airport you helped each other to strap the drugs around your waists using lengths of sticky tape. You have both pleaded guilty to the same single count on the indictment that particularises the dangerous drugs in the total amount of 956.72 grammes. Both of you have consistently admitted responsibility for the amount you carried. You were understandably keen to deny a joint plan to deliver the whole. Your agreement of the Summary of Facts maintains that position but acknowledges that you aided and abetted one another by helping with the strapping-on of the drugs. It has, of course, been explained to you that in Hong Kong sentences for drug-trafficking are based upon the nature of the drug and the quantity of it and that guidelines exist which specify a bracket of imprisonment based upon a bracket of amount. Your individual amounts of just short of 480 grammes puts you in the bracket of 300 to 600 grammes attracting a starting point, after trial, of 14 to 18 years' imprisonment. The total amount of 956 grammes would take the starting point to one in excess of 20 years. If this had been a true joint enterprise where you had both agreed to a plan to deliver the total amount, then of course I would take that higher starting point. That is not the case. On the other hand, I cannot take a starting point based only on the individual amounts because that would ignore your mutual help of each other. The judgment this case calls for is one that realistically assesses the degree of mutual help and fairly reflects that in some increase in the sentence. In my judgment, the degree of help was minimal. Each of you was set upon his own enterprise. I have no doubt that the true answer to the question, "What are you doing?" posed at the material time, and answered truthfully, would have been that you were trafficking in 500 grammes of ice. It would not have been that you were trafficking in 1000 grammes of it. Put another way, if asked about your co-accused, I judge that you would have truthfully answered that he was doing the same thing and not that you were both doing one thing. I can see how the fact that another man takes the same risk that you do may afford some degree of comfort, but for there to be any significant criminal liability in this regard arising from your parallel courses of conduct, help, by presence, must be wilful. On the facts before me I perceive no such wilful encouragement. It is thus that the mutual help is limited to aiding one another to strap the drugs to your bodies. The photographs in the court papers illustrate what was done. It was nothing sophisticated. A bag of drugs was placed against your belly and held in position by the simple method of winding sticky tape around your body. It was something that you could each have achieved unaided. It is thus that I regard the degree of help of your aiding and abetting of each other as being merely incidental. I judge each of you would have trafficked in your 500 grammes or so without the aid of your accomplice. The aid was theoretical more than real. Whilst you would always have been aware that you were risking substantial imprisonment, I would be surprised if you had ever thought that your help with the sticky tape would have made that imprisonment years longer. Whilst men in your position cannot be the arbiters of your own moral culpability, your appreciation of the wrong you were doing is not something that can be completely ignored. There will undoubtedly be cases where two men trafficking in dangerous drugs act in a way that provides significant mutual assistance. The matter cannot be met, in my view, by the application of a label such as joint enterprise or aiding and abetting which, in turn, engages some blanket rule to enhance the sentence. The matter is, to use the phrase of the moment, fact sensitive. It is thus that your mutual assistance will have little impact upon the length of your sentences because it had little impact on the execution of your crimes. It cannot be ignored completely but its aggravation of your crime is limited and is less, in my view, than that of moving the dangerous drugs across international borders, a well recognised aggravation. Accordingly, I will stay within the 14 to 18 year bracket to look for a starting point, reflecting the limited mutual assistance and the international element, by taking a term of just over 17 years, giving a sentence, after the one‑third discount for your pleas, of 11½ years' imprisonment. I have not put a value in percentage terms or in terms of a period of imprisonment on the limited mutual assistance. That is deliberate. It remains just one factor that colours the overall sentence. Mathematically ascribing figures to the shades and colours that make up a sentence is, in my view, neither required nor helpful. The sentence is one of 11½ years in each case. I have said more than I normally do when I sentence men for trafficking in dangerous drugs but that is because your case is unusual because the total amount on the indictment is not reflected in the end sentence and that required some explanation. |