Read the full judgment text of CAAR 000015/1993 on BabelCite. This Court of Appeal judgment was delivered on 16 June 1994 before Silke VP, Macdougall VP, Bokhary JA.
Criminal law – dangerous drugs – trafficking in cocaine – sentencing – review under s.81A Criminal Procedure Ordinance – application of R. v. Lau Tak Ming [1990] 2 HKLR 370 tariff to cocaine – respondent trafficked 1,771.58 grammes of pure cocaine hydrochloride in 2,353.75 grammes of mixture from Brazil to Japan via Hong Kong, using a false Venezuelan passport – guilty plea entered late on second day of trial – trial judge adopted 12-year starting point and imposed 7 years' imprisonment – Attorney General applied for review alleging sentence inadequate and/or wrong in principle – whether Lau Tak Ming guidelines apply to cocaine – held yes; cocaine and heroin are closely alike in harm and are equated for sentencing purposes per Leung Pang Chiu, so Lau Tak Ming rather than the older Chan Chi Ming tariff governs – whether 15-year starting point correct – held no; the quantity was 'very substantial' under Lau Tak Ming attracting a starting point of 20 years or more, and a starting point in excess of 20 years would have been appropriate – fact that drugs not intended for local consumption irrelevant given international nature of drug trade – element of deterrence plays a large part in hard drug cases – whether foreignness of accused warrants a specific discount – held foreignness and isolation in custody are factors to be considered in the totality of the sentence but not to any substantial degree, following R. v. Shipra and R. v. Ohmert; no specific discount should be given for this factor alone – Shipra headnote clarified – what is the appropriate sentence – 15 years would have been appropriate after mitigation, but a further one-year discount was allowed to reflect the very substantial increase imposed in review proceedings – final sentence: 14 years' imprisonment (up from original 7 years) – sentence on the false document count unaffected – Attorney General's application granted.
Legal issues: Application of Lau Tak Ming guidelines to cocaine trafficking · Whether 15-year starting point was correct · Foreign nationality and isolation as mitigation · Determination of appropriate sentence on review
Outcome: Attorney General's application for review granted; respondent's sentence on the trafficking count increased from 7 years to 14 years' imprisonment.
Cited by 54 cases