HKSAR v Lee Ming Ho
CACC 130/2019, [2024] HKCA 150 · Hon Macrae Acting CJHC, Zervos and A Pang JJA
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. The sentencing judge adopted a starting point of 33 years, enhanced it by two years for the international element and by a further two years because the Applicant held a higher position in the trafficking enterprise.
The Court of Appeal invited submissions on how HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chung Ping Kun [2014] 6 HKC 106 should be construed and applied following the sentencing approach in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
Submissions
The Applicant submitted that the 33-year starting point was excessive and that 30.5 years was appropriate, subject to adjustment for the international element and his role. The prosecution accepted that the sentence was robust and that the enhancements arguably did not adequately address totality.
The Court invited further submissions on:
- whether the Abdallah guidelines could continue alongside the approach in Herry Jane Yusuph; and
- whether enhancing sentence for the international element risked double counting when role and culpability were also assessed.
The Court of Appeal decision
Decision
Giving the judgment of the Court, Macrae Acting CJHC explained:
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.
The Court identified six essential difficulties with continuing to apply Abdallah rigidly:
- Factors formerly treated as separate enhancements may more naturally form part of the assessment of role and culpability.
- Applying both approaches creates a risk of double counting.
- Giving every aggravating factor the same value is inflexible and can obscure meaningful differences between offenders.
- The two-year enhancement practice had developed inconsistently with Abdallah.
- Already severe sentences leave limited room to distinguish couriers from more senior participants.
- The modern approach permits greater judicial discretion while retaining quantity as the primary sentencing determinant.
Reconsideration and outcome
Abdallah reconsidered
After consulting the criminal judges of both divisions of the Court of Appeal, the Court held that Abdallah had to be reconsidered in light of Herry Jane Yusuph. The sentence ranges in Abdallah for quantities exceeding 600 grammes of heroin or cocaine remain unchanged, but the remainder of its approach must yield to Herry Jane Yusuph.
The international element, a mastermind or senior role, and involving a young person should ordinarily inform the assessment of role and culpability when fixing the starting point, rather than operate automatically as separate enhancements. Exceptionally serious features may still justify separate treatment.
The Court stressed that this was not a new set of guidelines. Sentencing judges must continue to apply the totality principle and ensure that the overall sentence is fair, balanced and just.
Application to the appeal
The Applicant organised the operation and knew that the drugs were being brought by sea from Shenzhen. His culpability was more serious than that of his co-defendants. The Court adopted a starting point of 31 years and, reflecting his role and the international element while remaining mindful of totality, imposed a sentence of 33 years' imprisonment.