Read the full judgment text of CACC 309/2017 on BabelCite. This Court of Appeal judgment was delivered on 14 June 2018 before Hon Macrae VP and Zervos J.
Criminal law – trafficking in dangerous drugs – cocaine – sentence – sentencing guidelines – R v Lau Tak Ming & Another – starting point – enhancement – Form 8 recognizance holder – breach of trust – non-refoulement claimant – guilty plea – one-third discount – suspended sentence activation – totality – Whether enhancement of 1 year for Form 8 recognizance status was manifestly excessive – held: not excessive – sentencing discretion – appeal dismissed. The applicant pleaded guilty in the magistrates' court to trafficking in 199 grammes of a solid containing 121 grammes of cocaine narcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and was committed to the High Court for sentence. Following the guidelines in R v Lau Tak Ming & Another, applied to cocaine by Attorney General v Pedro Nel Rojas, the judge adopted a starting point of 9 years and 9 months' imprisonment, enhanced by 12 months because the applicant, a Form 8 recognizance holder with a pending non-refoulement claim, had committed a serious drugs offence. A full one-third discount for guilty plea was granted, and a 2-week suspended sentence previously imposed in the magistrates' court was activated in full and ordered to run consecutively, giving an overall term of 7 years 2 months and 2 weeks' (86½ months') imprisonment. The applicant sought leave to appeal, contending that the sentence was manifestly excessive and that he needed to return to Pakistan to care for his mother. The Court of Appeal (Macrae VP and Zervos J) held that the starting point and the 1-year enhancement for the applicant's status as a Form 8 recognizance holder, following HKSAR v Shah Syed Arif, were not manifestly excessive and were not wrong in principle, particularly since the quantity of cocaine in the present case was more than double that in Shah Syed Arif. The court indicated that an enhancement of less than 6 months would not be expected for a serious drug trafficking offence by a Form 8 recognizance holder, and that such offenders must be firmly discouraged from committing serious crimes while their non-refoulement claims are being processed. Reference was made to comparable enhancements in HKSAR v Mahabul Alam Khan (15 months), HKSAR v Musah Hakeem Tahiru (16 months) and HKSAR v Dramane Mouhamed Saiti (up to 18 months). The application for leave to appeal was refused and the appeal dismissed.
Legal issues: Whether 1-year enhancement of starting point for Form 8 recognizance status was manifestly excessive or wrong in principle
Outcome: Application for leave to appeal against sentence refused; appeal dismissed.
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