An opportunity to review the current sentencing practice in drug trafficking cases presented itself to the Court of Appeal (Hon Lunn VP, Macrae VP and McWalters JA) in HKSAR v Kilima Abubakar Abbas  HKCA 602. Sentencing practice in drug trafficking is largely based on tariff cases where the principle concern of the sentencing Judge is the narcotic quantity of the particular dangerous drug trafficked. It was argued for the Appellant that the sentence of imprisonment should be reduced as the Appellant was a mere courier who had acted under direction, had a limited role performed as a result of economic coercion and exploitation, and had no influence on those above him. Such considerations are relevant in the sentencing practice in other common law jurisdictions, including England & Wales, and Australia.
The Court of Appeal also examined how the following can operate to reduce sentence:
- The provision of assistance/information to the authorities
- Participation in a programme to discourage unlawful drug trafficking
TIME FOR CHANGE?
The Court of Appeal reviewed the line of authorities from Chan Chi Ming in 1979 and Lau Tak Ming in 1990 through to Abdallah in 2009 and the present, concluding unanimously that it was already established that the tariffs set were intended for defendants at the lowest level of culpability, for example mere couriers, without regard to aggravating factors. The Court of Appeal went on to say that no valid argument had been presented to compel the Court to depart from the established tariffs. Macrae VP opined:
“[E]ach country will shape its own approach to suit its own conditions, the desires of its own people, its attitude to punishment as well as the particular manifestation of the [scourge of drug-trafficking] in its respective community”
- “…rather than being swamped by a problem which is out of control…the problem in Hong Kong is being steadily contained, if not, in certain respects, reduced.”
Macrae VP further said that it was difficult to establish, in any event, a defendant’s precise role in a drug-trafficking operation. McWalters JA saw no difficulty in Judges being called upon to assess the culpability of offenders either by submissions or a Newton hearing, much as happens in relation to joint enterprise sentencing. He suggested that, although the circumstances may be rare, a distinction could be drawn at times as to how the offender became involved in the offence (not embracing personal circumstances) which warranted an individualised sentence. Lunn VP and McWalters JA also expressed concern that the effect of Abdallah has been to narrow the room for reflecting, in sentencing, the difference in role between a mere courier and those more heavily involved in the hierarchy of drug-trafficking.
THE PROVISION OF ASSISTANCE/INFORMATION TO AUTHORITIES
Citing Z-v- HKSAR (2007) 10 HKCFAR 183 the Court of Appeal looked at the meaning of “useful assistance to the authorities”. Where in this case the information provided had not actually been used by the authorities, the information had been shown, in part, to be true and reliable. Macrae VP, in considering examples of unsuccessful controlled deliveries by defendants seeking discounted sentences, opined that the factors to be taken into account were sufficiently articulated in Z (supra); and that the courts should have faith and trust in the assessment from the relevant authority of the assistance provided. McWalters JA proposed a test (with which Macrae VP agreed) of “practical use” rather than assistance which “bears fruit” or provides “tangible results”. Such a test would encompass information which had the potential to assist. The Court ruled that the “must bear fruit” approach in HKSAR v Bin Kei Chi CACC 181/2005 (unreported) would discourage defendants from providing assistance and ultimately undermine the underlying judicial policy of rewarding a defendant who has assisted law enforcement by conferring a real and meaningful benefit in sentencing.
The better and broader approach was that adopted by Macrae JA (as he then was) of “useful assistance” in HKSAR v Nkwo Nnaemeka Darlington  1 HKLRD 692 and would extend to include information provided by defendants that could potentially assist or had actually assisted the authorities. That approach should also be taken with participation in a controlled delivery operation, even if unsuccessful.
The appropriate mechanism to assess a claim of useful assistance was through the Sivan procedure and, if determined appropriate, an increase to the discount afforded to the defendant for his guilty plea should be given, rather than by way of a lump sum.
PARTICIPATION IN A PROGRAMME TO DISCOURAGE UNLAWFUL DRUG TRAFFICKING
Father John Wotherspoon has for some time run a programme to discourage Tanzanians from trafficking in dangerous drugs. A number of convicted drug traffickers in Hong Kong have participated in the programme by contributing messages on the website run by Father Wotherspoon. There has been a varying approach to the appropriate discount for participation in this programme, some sentencing Judges affording a discount, others stating that it is a matter for the Executive.
Lunn and Macrae VPs ruled, by majority, that participation in Father Wotherspoon’s programme should not be treated as good character evidence or an indication of remorse by a defendant. However, participation in the programme is in the public interest and should be encouraged, and if in the absolute discretion of the sentencing Judge it is deemed appropriate, a discount of no more than 3 months is warranted. McWalters JA, however, characterised participation in the programme as “acts of reparation”, and taking into account the need to make it harder for international drug trafficking syndicates to recruit mules to traffic drugs to Hong Kong, a more meaningful discount of 6 months to 1 year should be afforded. If participation continued after sentencing, a further application could be made to the Executive.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: Sentencing practice in drug trafficking