HKSAR v Lee Ming Ho
Case Updates
Criminal Law
May 2024
CACC 130/2019, [2024] HKCA 150
CACC 130/2019, [2024] HKCA 150
Hon Macrae Acting CJHC, Zervos and A Pang JJA
Criminal Law
6 February 2024
Background
The Applicant was convicted after trial of one count of trafficking in a dangerous drug worth more than HK$10.5 million (34,232 grammes of ice) and was sentenced to 37 years imprisonment in respect of that count. This sentence was believed to be one of the longest sentences ever ordered to be served for an offence of trafficking in dangerous drugs in Hong Kong. The sentencing Judge had taken a starting point of 33 years imprisonment and enhanced the sentence by 2 years for the international element, the drugs having entered Hong Kong by boat from Mainland China. She had then enhanced the sentence further by another 2 years on the basis that the applicant held a higher position in the hierarchy of the trafficking enterprise.
The Court of Appeal invited submissions from the parties as to how the appellate decisions in HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chung Ping Kun [2014] 6 HKC 106 should be construed and applied in the wake of the sentencing guidelines and approach set out in HKSAR v Herry Jane Yusuph [2021 1 HKLRD 290] (which was examined in the March 2021 edition of Hong Kong Lawyer: https://www.hk-lawyer.org/content/sentencing-drug-trafficking-fresh-app…).
Submissions
It was submitted that the starting point (of 33 years) was excessive and that a starting point of 30.5 years was appropriate, which could be adjusted upwards for the aggravating features of the international element and the Applicant’s role. The Prosecution conceded that the sentence was “robust” and that it was arguable that the approach to the enhancements did not adequately address the totality principle. The Court of Appeal invited the parties to make further submissions on:
- whether the guidelines in Abdallah could continue to operate in conjunction with the new approach outlined by the Court in Herry Jane Yusuph; and
- whether the enhancement for the international element might result in “double counting” when the role and culpability of an offender was to be assessed under the new approach in Herry Jane Yusuph
Decision
Giving the judgement of the Court, Acting Chief Judge of the High Court Macrae said:
“One of the more salient changes to emerge from Herry Jane Yusuph was a move away from the rigid arithmetical application of starting points and sentences based purely on narcotic quantity to a more discretionary approach involving an assessment of the offender’s role and culpability”
He went on to identify 6 essential problems with Abdallah as follows:
- With the greater emphasis in Herry Jane Yusuph on identifying role and culpability when assessing the gravity of the offence and its appropriate starting point, some of the factors stipulated in Abdallah ought more naturally and rationally to be taken into account in the assessment of role and culpability rather than as separate discrete aggravating features increasing the starting point.
- If the approach in Abdallah is left to continue alongside the Court’s new approach in Herry Jane Yusuph there is a danger that double counting may occur on the part of the sentencing Judge.
- There is an illogicality and inflexibility in treating all the aggravating factors listed in Abdallah as having the same value justifying the same enhancement of sentence once the quantity exceeds 1,000 grammes:
…there may be a distinction, for example, between the foreigner arriving in Hong Kong for the first time from an impoverished country with a consignment of drugs, who may not, through naivety or lack of education, fully appreciate the enormity of what he is doing and the appalling consequences of the punishment that will be meted out when he is caught; and the courier from Hong Kong, who journeys across the world to collect a consignment of drugs in order to bring it back to Hong Kong, knowing full well the gravity of his crime and what awaits him when he returns”.
The Court has moved away from a “one size fits all” approach on the basis that every courier is the same, to a more nuanced examination by the sentencing judge of role and culpability.
- A practice had developed in sentencing where, once one of the aggravating features in Abdallah had been identified, the range of enhancement was prescribed as no more than 2 years. This appears to have arisen from the case of HKSAR v Yeung Lee Ming Simon [2018] 1 HKLRD 291 where Yeung VP had found that “the range of enhancement for a cross-border element in serious cases of drug trafficking generally would not exceed 2 years.” Another division of the Court of Appeal had effectively re-interpreted the not less than 2 years’ imprisonment laid down in Abdallah as not more than 2 years’ imprisonment.
- Sentences in Hong Kong for trafficking in large quantities of dangerous drugs are already very severe and the ability to distinguish between those who are mere couriers or storekeepers and those who are much more involved, becomes more and more limited and restricted.
- The Court (in Herry Jane Yusuph) has shifted from the prescriptive application of defined sentences based on arithmetic alone to allow for a greater element of discretion on the part of sentencing judges. Although quantity remains the primary determinant in sentencing, as there is a need for predictability and consistency in sentencing, personal circumstances pale into relative insignificance when seen against the gravity of these particular crimes.
After consulting all other criminal judges of the two divisions of the Court of Appeal, Abdallah must now be re-considered and re-evaluated in the light of Herry Jane Yusuph. Whilst the ranges of sentence set out in Abdallah in respect of quantities exceeding 600 grammes of heroin or cocaine will remain unaltered, the rest of Abdallah must now yield to the approach set out in Herry Jane Yusuph.
Of the enhancement factors listed in Abdallah, (1) the international element; (2) where the trafficker is shown to be a mastermind or senior player; (3) where the offender is shown to have engaged a young person to assist in the trafficking, are now to be regarded as matters going to the role and culpability of the offender when identifying the starting point, rather than as a separate and additional aggravating factor. Where an offender has a previous conviction for drug trafficking, the extent to which this will enhance the sentence, if at all, is left to the sentencing judge. Where an offender is a Form 8 holder there are no specific numerical guidelines as to the level of enhancement. This does not mean that if any of the 3 enhancement factors identified above are of such seriousness or significance they should not call for separate treatment as an aggravating factor. Sometimes “the aggravating factor is so egregious and important to the criminality involved that a judge is perfectly entitled to single it out and explain why he or she is enhancing the sentence for this particular factor.”
The Court emphasised that these were not new guidelines and that sentencing Judges should still keep an eye on the totality principle and ensure that the overall sentence is fair, balanced and just in all the circumstances. Step 6 of Herry Jane Yusuph did not involve a form of unprincipled, final reduction where a sentencing judge felt the sentence might be overbearing or crushing. This judgement is intended to direct sentencing judges to consider those aggravating features applicable in less prescriptive terms when assessing the role and culpability of the offender, rather than as separate, discrete factors going to enhance the starting point by defined increments. Step 6 of Herry Jane Yusuph is specifically directed at the danger of arriving at and inflated starting point by means of multiple counts or multiple aggravating factors and not otherwise.
Application of these principles to this appeal
Given that the Applicant was clearly the organiser of the operation who knew that the drugs were coming by sea to Hong Kong from Shenzhen, his role and culpability was more serious than those of his co-defendants (who were given sentences of 30.5 and 31 years). A starting point of 31 years was adopted. Reflecting the role and the international element, and mindful of totality, the appropriate sentence after trial on this count was 33 years imprisonment.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: HKSAR v Lee Ming Ho
