HKSAR v. Godson Ugochukwu Okoro

CACC 222/2015

[2019] HKCA 158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 222 OF 2015

(ON APPEAL FROM HCCC NO 525 OF 2014)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.On 5 June 2015, the appellant pleaded guilty to a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in the Court of First Instance before Deputy High Court Judge Campbell-Moffat SC (now Campbell-Moffat J) (“the judge”). On 18 June 2015, the judge sentenced the appellant to 6 years and 4 months’ imprisonment.

2.The appellant filed a notice applying for leave to appeal against sentence on 6 July 2015.  However, over this period he rendered assistance to the authorities by providing information in relation to the person for whom he was delivering the drugs in question, and by also indicating that he was willing to testify against him.  As a consequence, the appellant’s application for leave to appeal was placed in abeyance pending an investigation into the information that he supplied and an assessment of its value, if any.  This explains the delay for the hearing of the leave application.

3.The appellant was subsequently granted leave by a single judge to advance his appeal on two grounds.  The first ground seeks a reduction to the appellant’s sentence for assistance he rendered to the authorities, while the other ground challenges the constitutional validity of the sentencing guidelines for drug trafficking as they apply to couriers.

4.At the conclusion of the appeal hearing, we reserved our judgment. It was noted that in relation to the second ground of appeal another division of this Court had been invited to consider the current sentencing guidelines as they apply to couriers in the appeal of HKSAR v Kilima Abubakar Abbas, CACC 143/2016; [2018] HKCA 602, for which judgment had yet to be handed down. We said that we would hand down our judgment in this appeal after the Kilima judgment had been handed down, in order to give the parties an opportunity to file any supplemental submissions, if they thought it was necessary.  The Kilima judgment was handed down on 18 September 2018.  No supplemental submissions were filed by the parties.

The admitted facts

5.The particulars of the offence to which the appellant pleaded guilty were that on 13 August 2014, in Mong Kok, Kowloon, he unlawfully trafficked in a dangerous drug, namely 249 grammes of a solid containing 107 grammes of cocaine.

6.The brief facts giving rise to the offence were that at about 10:30 pm on 13 August 2014, the appellant was observed by police officers walking along Nathan Road in the direction of Prince Edward.  He was stopped by the police officers and searched.  He was found to be wearing two pairs of underpants and tucked between them was a condom wrapped in tissue paper.  Inside the condom were 14 pellets that were later found to contain the quantity of cocaine in question.  The retail value of the drugs at the time of the offence was $255,723.

7.The appellant was arrested and taken to Mong Kok Police Station. He was further searched and three mobile telephones and cash in the sum of $1,625 were seized from him.  In a subsequent video recorded interview under caution, he said that he collected the cocaine from an unknown male at Tsuen Wan MTR station on the instruction of a Chinese male whose name was “Hassan”.  He said that he was delivering the drugs to Hassan for a reward when he was arrested by the police officers.

The appellant’s mitigation

8.The appellant is a Nigerian national, who at the time of the offence was 36 years of age and a Form 8 recognizance holder.  He had a prior conviction for doing or offering to do an act preparatory to trafficking in a dangerous drug, contrary to section 4(1)(c) of the Dangerous Drugs Ordinance, Cap 134, for which he was sentenced to 2 years’ imprisonment on 20 May 2011.

9.In mitigation, defence counsel (who was not Mr Andrew Bullett, counsel appearing for the appellant in this appeal) submitted that the appellant claimed that he had been entrapped and that he had committed the offence at the request of another person who was acting as a police agent.  He further submitted that the appellant would not have delivered the drugs if he had not been requested to do so by the police agent.

10.After referring the judge to the sentencing guideline cases of R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437, defence counsel suggested that in the circumstances of the case a starting point of 10 years’ imprisonment was appropriate.

11.Defence counsel also referred the judge to the fact that the appellant had suffered an injury during a struggle with the police officers when he was arrested.  He explained that a struggle took place because the appellant was unaware that they were police officers.  As a result of the injury he suffered, the appellant had some permanent scarring to his leg, which defence counsel invited the judge to take into account when sentencing the appellant.

The reasons for sentence

12.After recounting the facts of the case, the judge referred to the matters raised in mitigation which she rejected.  She said:

“On your behalf, counsel has urged upon me to consider all the circumstances surrounding your arrest, interview and subsequent behaviour. He says on your behalf that you have been co‑operative from the beginning and that you are remorseful. He also suggests that you find yourself in this position because you were set up by others and that, but for that entrapment, you would not have committed this offence.

Considering your previous conviction for doing an act preparatory to trafficking in dangerous drugs, for which you received a term of imprisonment from the District Court and considering the fact that you had upon you the mobile phones, SIM cards and batteries referred to earlier, I do not believe that to be the case.

Lastly, he asked me to take into account the injuries you received upon arrest.  If I am to do that, I must also take into consideration the fact that you resisted arrest and that you had to be subdued by the police.  It would seem that you brought those injuries upon yourself.  If that is not the case, then any future CAPO claim that you make will deal with the matter.  In any event, to do my best to be fair to you, I will not consider your behaviour on arrest, and I will sentence on the basis of the facts as agreed between prosecution and defence counsel.”

13.The judge noted that the sentencing guidelines for trafficking in cocaine as laid out in Lau Tak Ming[1] for a quantity between 50 and 200 grammes of cocaine narcotic was 8 to 12 years’ imprisonment.  For the quantity of 107 grammes of cocaine narcotic, the judge adopted a starting point of 9 years and 6 months’ imprisonment which she reduced by one third for the appellant’s guilty plea to 6 years and 4 months’ imprisonment.

The grounds of appeal

14.We turn to address the two grounds of appeal.

The first ground of appeal

15.The first ground of appeal is that the appellant should have been afforded a discount to his sentence for the assistance he rendered to the authorities by providing information, which had not been properly pursued by them.

(a) Assistance to the authorities

16.On 29 April 2015, at the pre-trial review of the appellant’s case, it was indicated that he would plead guilty to the offence he faced.  On 5 June 2015, he pleaded guilty as indicated, but it was requested that the case be adjourned for four months to enable him to make a non-prejudicial statement to the police in order to provide information to them.  The judge refused an adjournment for that duration, but instead granted one to 18 June 2015. 

17.The appellant, in the meantime, made a non-prejudicial statement on 8 June 2015, which was the subject of submissions at the adjourned hearing.  The judge noted that at that stage the information he had provided was not considered useful, although she added that depending on any further investigation, the matter could be dealt with on appeal.  A request for a further adjournment was made to the judge, which she refused.  She then proceeded to sentence the appellant.

18.After the appellant had been sentenced, he made a further non-prejudicial statement on 7 July 2015.

19.Mr Bullett submits that when the appellant was arrested he provided information to the police about the person for whom he was delivering the drugs.  The information consisted of the person’s name, “Ah Sang”, his telephone number, and where he could be found.  It seems that the person identified as “Ah Sang” by the appellant had been arrested by the police about a month after the appellant, but for an unrelated drug offence.  “Ah Sang” was eventually convicted for that offence on his own plea, and on 8 March 2016, he was sentenced to 6 years’ imprisonment.

20.Ms Anna Y K Lai, SC,[2] for the respondent, disagrees with the suggestion that the appellant was initially cooperative and provided useful information.  She submits that it was not until the appellant made his non-prejudicial statements that he displayed a willingness to provide information.  She also informs us that at the conclusion of the investigation into the information provided by the appellant, the prosecution took the view, based on a legal advice dated 26 July 2017, that there was insufficient evidence to prosecute “Ah Sang” in relation to the appellant’s case.

(b) Percentage discount for assistance to the authorities

21.However, Ms Lai acknowledges that the appellant has made a genuine attempt to assist the authorities by providing useful information and material which turned out to be accurate, even though it was not fruitful, in the sense that no further action was taken in relation to it.  As a result, she accepts that the provision of information by the appellant in these circumstances entitled him to a reduction to his sentence in accordance with the principles laid out in HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799; HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692; and HKSAR v Lo Sze Tung Stephanie [2018] HKCA 421, CACC 190/2017. 

22.In view of the recognition that the appellant had provided useful information to the authorities, it was accepted by the parties that an appropriate discount to the appellant’s sentence should be 38.5% (including the one-third discount for a guilty plea).

23.In considering the range of discount for assistance rendered to the authorities by the appellant, it is useful to note the recent judgment of Lo Sze Tung Stephanie, where McWalters JA, giving the judgment of the Court, discussed the nature of assistance where the 33.3% - 40% discount range may be appropriate.  He explained that a defendant who may fall within this range is someone who has made a genuine attempt to assist the authorities, which assistance has been helpful, but, for one reason or another, it is not assessed to be of particularly great value.[3] He went on to note that a 40% discount was the high watermark for helpful assistance which by its nature was limited and unfruitful.[4]  He referred to Tsang Ka Wing, where it was noted that the 40% discount normally applies to those defendants who have given valuable or tangible assistance to the police but have not been required to give evidence, typically because the defendant against whom they were to testify pleaded guilty.

24.After taking into account the nature of the information and the relevant circumstances, we too are of the view that the appellant is entitled to a reduction to his sentence of 38.5%.

25.The judge adopted a correct starting point of 9 years and 6 months’ imprisonment in relation to the quantity of cocaine narcotic in question which when reduced by 38.5% would result in a sentence of 5 years and 10 months’ imprisonment.  This would be 6 months less than the sentence imposed on the appellant by the judge.

(c) Status as a Form 8 recognizance holder

26.However, that is not the end of the matter because, as Ms Lai quite rightly notes, the appellant was a Form 8 recognizance holder at the time of the offence, which is an aggravating factor warranting an enhancement to his sentence.

27.The judge in her reasons for sentence made no mention of this aggravating factor, nor was it addressed during the sentencing of the appellant.

28.The principle of enhancement to a sentence of a Form 8 recognizance holder had been articulated by this Court well before the appellant committed the present offence, and should have been appropriately taken into account in sentencing him.  It was first stated on 23 August 2013 in HKSAR v Sandagdorj Altankhuyag [2014] 1 HKC 206,[5] and later on 30 April 2015 in HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014,[6] and thereafter with repeated emphasis in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664;[7] HKSAR v Ali Saif [2018] HKCA 358, CACC 309/2017;[8] and HKSAR v Joof Saihou [2018] HKCA 362, CACC 252/2017.[9]

29.Ms Lai invites the Court to enhance the sentence of the appellant by one year for this aggravating factor which she submits would be appropriate, bearing in mind that the amount of cocaine narcotic was 107 grammes.  Where we might have otherwise agreed with Ms Lai, we have come to the conclusion that in light of the range of enhancements and the application of this principle at the time of the offence, an appropriate enhancement in the circumstances of this case is one of 6 months.

(d) Taking into account administrative detention

30.Mr Bullett also seeks to have this Court take into account the period of administrative detention of 96 days served by the appellant from 19 April to 23 July 2012.  It would appear that this period of administrative detention followed his release from custody in relation to his previous conviction.

31.This proposition was initially raised by the respondent which Mr Bullett has adopted.  He relies on the decision of HKSAR v Eftakhar Beg [2015] 5 HKC 427.  But that decision is not apposite, and reliance on it is misconceived. It was concerned with a sentencing court’s discretion of taking into account administrative detention which is connected with the offence on which a defendant is to be sentenced.  There is no such connection between the period of administrative detention in question and the present offence.

The second ground of appeal

32.The second ground of appeal is that the sentencing guidelines for drug trafficking unduly restrict the ability of the courts to vary sentences for the role and circumstances of individual defendants, and in the case of drug couriers, such as the appellant, impose mandatory minimum sentences which are manifestly disproportionate to the criminality involved, and thus arbitrary, and in violation of Article 5(1) of the Hong Kong Bill of Rights (BOR 5(1))[10] and Article 28 of the Basic Law (BL 28).

(a)   The legislative provisions

33.The offence of trafficking in a dangerous drug is provided under section 4(1) of the Dangerous Drugs Ordinance, Cap 134, which reads:

“(1) Save under and in accordance with this Ordinance or a licence granted by the Director hereunder, no person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong –

(a) traffic in a dangerous drug;

(b) offer to traffic in a dangerous drug or in a substance he believes to be a dangerous drug; or

(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug or in a substance he believes to be a dangerous drug.”

34.The penalty provision upon conviction for an offence under section 4(1) is provided under section 4(3) which reads:

“(3) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable –

(a) on conviction on indictment, to a fine of $5,000,000 and to imprisonment for life; and

(b) on summary conviction, to a fine of $500,000 and to imprisonment for 3 years”

35.Under section 2 of the Ordinance, the prohibited act of “trafficking” is broadly defined and the drugs or substances that constitute “a dangerous drug” are specified in Part 1 of the First Schedule to the Ordinance.

36.The definition of “trafficking” is of particular significance because of the wide range of conduct that it encapsulates.  It “includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and ‘traffic in a dangerous drug’ shall be construed accordingly.”  See also the broad definitions of “export” and “import’ under section 2 of the Ordinance.  Clearly, a courier of drugs would come within the terms of the definition of “trafficking” and hence the offence.

37.BOR 5(1) reads:

“(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” (Emphasis added)

38.BL 28 reads:

“The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.” (Emphasis added)

(b) The sentencing guidelines

39.The illegal drug trade is a worldwide scourge that has by necessity warranted the imposition of tough laws with severe levels of punishment against persons convicted of involvement in this insidious trade.[11] Drug trafficking has been a particularly serious problem for Hong Kong, largely because of its location in the region and status as a regional transportation centre.  This is evident by the constant flow of cases coming before the courts in Hong Kong, involving defendants who have acted as couriers of dangerous drugs, smuggling dangerous drugs in or out of Hong Kong.

40.The maximum sentence for drug trafficking of life imprisonment reflects the legislature’s recognition of the inherent gravity and seriousness of the offence and the need for severe punishment of offenders.

41.It is clear that the sentencing guidelines for drug trafficking have been formulated and designed to provide a means of consistency by appropriate levels of punishment based on the nature and quantity of the narcotic involved against those persons who have played a role in the trafficking of drugs, such as couriers.

42.The creation and purpose of sentencing guidelines was explained by Bokhary PJ (as he then was) in his judgment in Seabrook v HKSAR (1999) 2 HKCFAR 184 at 191E-I:

“ In the course of hearing appeals against sentence and reviews of sentence, the Court of Appeal will, over a period, detect a general level of sentence in respect of a particular offence. There will however be a number of strays – some on the high side and some on the low side. In such circumstances, the Court of Appeal will very properly consider it appropriate to assist sentencing judges by laying down a set of guidelines for that offence. If the offence is one such as robbery, the scale of seriousness will be calibrated according to circumstances of aggravation. These would be in the nature of factors such as – the involvement of a number of robbers rather than a lone robber; the use of weapons; the gagging or tying up of victims; the invasion of domestic premises; and so on.

If the offence is trafficking in a dangerous drug, then the guidelines will naturally lend themselves to something in the nature of a table with each band defined by quantity. And different types of drugs will attract different sets of guidelines appropriate to the harm which they do.

If a new type of drug appears on the scene, sentencing judges will tend to sentence in respect of them by reference to existing guidelines for some other type of drug, making such adjustments as seem appropriate.  Over a period, more and more becomes known about the new drug and eventually, it receives a set of guidelines of its own.”

43.In Lau Tak Ming, the Court of Appeal, some 30 years ago, laid down guidelines for trafficking in heroin that were later held to apply to cocaine.  The guidelines were set for the courier or storekeeper who was convicted of drug trafficking and were based upon the quantity of narcotic involved.  The Court set out a series of suggested bands where a range of quantities of narcotic corresponded to a range of terms of imprisonment, so that up to 10 grammes of narcotic the suggested band is 2 to 5 years’ imprisonment; between 10 and 50 grammes, the suggested band is 5 to 8 years’ imprisonment; between 50 and 200 grammes, the suggested band is 8 to 12 years’ imprisonment; between 200 and 400 grammes, the suggested band is 12 to 15 years’ imprisonment; and between 400 and 600 grammes, the suggested band is 15 to 20 years’ imprisonment.  Amounts of over 600 grammes, fall into the category of “very large quantities” for which the guidelines were extended by the Court of Appeal in Abdallah.

44.The Court in Lau Tak Ming provided further guidance on the relevant factors and considerations that a sentencing court would need to bear in mind or take into account at 386E-H:

“ Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability – though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.

This Court must guard against two things: first the tailoring by the dealer of the quantities he sends out into the street and procures for his sellers to sell, his courier’s to carry or his store-keeper’s to keep so as to reduce, for them, the length of the inevitable custodial sentence which will be passed on conviction – playing the ‘Bands’ in other words.”

45.In delineating the guidelines, the Court in Lau Tak Ming sought to address two important objectives in order to provide and maintain a fair and consistent sentencing regime in relation to persons convicted of drug trafficking.  First, it laid out relevant matters and issues that were required to be understood and considered by a sentencing court when punishing an offender for drug trafficking.  Secondly, it set out bands of terms of imprisonment according to the narcotic quantity involved to ensure that an offender received an appropriate level of punishment and that there was a parity of sentences between offenders in comparable circumstances.

46.The Court of Appeal in Abdallah in reviewing the sentencing guidelines for trafficking in very large quantities of heroin and cocaine, stressed the importance of parity in the treatment of offenders when passing sentence on them:

“4. It hardly needs to be said that there is a general policy on the part of the courts to make every attempt to achieve parity in the treatment of prisoners serving sentences for comparable crimes. This policy applies as much to traffickers of drugs as it does to other offenders but it is apparent that, because of the disparity which has arisen in the sentencing of a number of traffickers to terms of more than 20 years’ imprisonment for quantities in excess of 600 grammes of heroin (or cocaine), the time has now come to address this problem. In saying this, and for the avoidance of any doubt, we should add that the guidelines in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 at 387 for trafficking in quantities involving a narcotic weight of up to 600 grammes should continue to be applied.”

47.The Court went on to extend the sentencing guidelines for quantities of narcotic in excess of 600 grammes, and emphasised that it was doing so in order to avoid the increasing danger of disparity in sentencing offenders for large quantities of drugs, and to provide sufficient flexibility to a sentencing court when dealing with such cases.

48.In amounts of over 600 grammes, the Court extended the sentencing guidelines, so that between 600 and 1,200 grammes, the suggested band is 20 to 23 years’ imprisonment; between 1,200 and 4,000 grammes, the suggested band is 23 to 26 years’ imprisonment; and between 4,000 and 15,000 grammes, the suggested band is 26 to 30 years’ imprisonment.[12]  The Court added that the sentencing guidelines did not take into account any aggravating factors which may also be involved that would warrant enhancement of the starting point.  Examples of such aggravating factors were provided with a suggested level of enhancement.[13]

49.Experience is a very important indicator when assessing the value and benefit of a rule or practice.  This Court’s experience has been that sentencing guidelines provide a highly valuable and beneficial means of assistance to the courts in the sentencing of offenders.  We are in no doubt that without sentencing guidelines for drug trafficking there would be serious issues arising in relation to the just and consistent treatment and punishment of offenders.

(c) Application of the sentencing guidelines to couriers

50.After a review of a long line of authority, this Court in Kilima confirmed what had been repeatedly stated in the past by various divisions of this Court, that the sentencing guidelines for drug trafficking were set for a defendant at the lowest level of culpability in the hierarchy of trafficking, such as a courier or storekeeper, and that a defendant who was higher up in the hierarchy could expect an upward adjustment to the starting sentence.  The Court explained that no foundation had been laid or no case had been made out to follow the developments in other common law jurisdictions where the role of the offender would be a factor to be taken into consideration when sentencing for the equivalent offence of trafficking in a dangerous drug.[14] The Court therefore held that no regard was to be had to distinctions in the role of a courier or a storekeeper as a factor in mitigation reducing the starting sentence.[15]

51.It would seem that the Court in Kilima was not provided withthe necessary empirical data and legal argument to justify a conclusion that the developments in sentencing law and practice in other common law jurisdictions relating to an offender’s role and level of culpability in serious drug offences should be followed in Hong Kong.  In order for this Court to embark upon an exercise to change or vary established guidelines, it is necessary that the proper ground work is done.  See Attorney General v Dil Bahadur Gurung [1994] 2 HKC 476, at 483A-B.

52.It may be viewed that the broad approach in our sentencing regime in relation to drug trafficking can at times restrict the scope for individualised sentencing.  This may primarily be due to the fact that there is a limited basis on which to distinguish offenders with different degrees of culpability, even when they fall within the same category of offender.  There is the additional issue that with the increased number of cases coming before the courts involving very large quantities of drugs, there is very little room, if any, to further enhance a sentence between offenders when that is warranted.  The problem in such cases is that the sentence has already reached the upper levels of the maximum term of imprisonment that is available to be imposed on an offender.  Concern about this matter was expressed by McWalters JA in Kilima where he stated:

“148. … The sentencing regime must allow for the possibility that there will be large seizures of dangerous drugs and also for the possibility that persons, other than couriers, who are more heavily involved in this criminal activity, will be prosecuted. When these possibilities coincide, I fear that courts may find that the sentencing range available to them to reflect these aggravating factors may not enable them to adequately distinguish the culpability of the courier from that of the organizer.”

(d) The test of arbitrary imprisonment

53.The constitutional challenge on the sentencing guidelines for drug trafficking focuses on whether the application of them to drug couriers amounts to arbitrary imprisonment.

54.The Court of Final Appeal in Lau Cheong and Anor v HKSAR (2002) 5 HKCFAR 415 examined the scope of the protection afforded by BL 28 and BOR 5(1).  In the joint judgment of Li CJ and Ribeiro PJ, with whom the other judges agreed, they noted that the terms between the two articles differed and that BL 28 expressly provides a constitutional guarantee against arbitrary “imprisonment” and not just against arbitrary “arrest or detention”, as in the case of BOR 5(1).[16]  They further noted that “imprisonment” covers incarceration pursuant to a sentence lawfully imposed by a court after a criminal conviction.  They explained that BL 28 extends its protection to offenders lawfully in prison after conviction by a court, and as it prohibits “arbitrary or unlawful” imprisonment, it envisages that a term of imprisonment lawfully ordered may nonetheless be “arbitrary”.  It followed, therefore, that such arbitrariness may reside in the substantive rules of criminal liability whose breach led to the imprisonment ordered.[17]

55.They noted that this conclusion was consistent with interpretations of the equivalent article under the International Covenant on Civil and Political Rights (“the ICCPR”) to that of BOR 5(1), prohibiting “arbitrary arrest or detention”, where it was held that arbitrariness is not excluded merely because detention is pursuant to lawful procedures, and that it was not to be equated with “against the law”, but rather should be interpreted more broadly to include elements of “inappropriateness, injustice and lack of predictability”.[18]

56.In examining the meaning of “arbitrary” in BL 28, they adopted the definition given to it by the New Zealand Court of Appeal in Neilson v A-G[19]:

“Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.”[20]

57.They did not decide the precise scope and effect of BOR 5(1) because BL 28 was capable of invalidating, on the grounds of arbitrariness, substantive criminal laws founding a conviction and consequent imprisonment. 

58.As for the test of arbitrariness, Li CJ and Ribeiro PJ reasoned that it was a question as to whether the legal provision under challenge could be said to be “capricious, unreasoned or without unreasonable cause”.  They noted that there was a strand of authority that introduced the concept of “disproportion”, that equated with arbitrary imprisonment, sentences of imprisonment which are manifestly disproportionate.[21] In conclusion, they stated as follows:

“ 112. Deprivation of liberty can be attacked on the separate ground that it is unlawful. But where imprisonment is lawful, that is, where it is ordered pursuant to duly constituted laws, a high threshold must be crossed before those laws can be struck down on the basis that the imprisonment pursuant thereto is disproportionate. It must be sufficiently disproportionate to justify describing the law as “arbitrary” — a disproportion so great as to reduce the law virtually to something capricious, unreasoned or without reasonable cause. As Dr Manfred Nowak puts it, the disproportion must be “manifest”. Discussing arbitrariness in the context of art.9(1) of the ICCPR, he states:

… arbitrariness is to be interpreted broadly. Cases of deprivation of liberty provided for by law must not be manifestly unproportional,unjust or unpredictable. … Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel 1993, at p.173)” (Emphasis added)

59.In summary, whether an arrest or detention was “arbitrary” turned on the nature and extent of any departure from the substantive and procedural standards involved.  It would be arbitrary if it was “capricious, unreasoned, or without reasonable cause”, that is, if it was made without reference to an adequate determining principle or without following proper procedures, and if the laws imposed sentences of imprisonment that were manifestly disproportionate.

60.In Lau Cheong, the challenge, as here, was on the basis that BOR 5(1) and BL 28 had been infringed, but in the context that a mandatory life sentence after conviction for murder did not distinguish between different degrees of moral culpability, ranging from a mercy killer to a serial killer.  After analysing the scope and effect of BOR 5(1) and BL 28, the Court proceeded to decide the issue on whether mandatory life imprisonment infringed BL 28[22], which was the appropriate focus in light of the allegations of arbitrariness that had been raised.  The Court held that mandatory life sentence for murder was not arbitrary.

61.We will take the same approach in the context of this case and focus on BL 28.

(e) The appellant’s submission

62.In his oral submissions, Mr Bullett confirmed that the constitutional challenge was directed to the sentencing guidelines for trafficking in heroin and cocaine as laid out in Lau Tak Ming and Abdallah when applied to drug couriers.  It is not directed to the penalty provision under section 4(3) of the Ordinance which prescribes a maximum sentence of a fine of $5 million and imprisonment for life on conviction on indictment for the offence of trafficking in a dangerous drug under section 4(1) of the Ordinance.

63.He accepts that the offence of drug trafficking is a serious crime as reflected by the maximum sentence of life imprisonment that has been prescribed by the legislature.  However, he points out that the legislature by this maximum penalty nevertheless clearly contemplated lower penalties in all but the most serious cases.

64.He acknowledges the following general propositions that underlie the approach taken by sentencing courts:

(i)  the court’s sentencing discretion is important and enables it to take into account, amongst other things, the facts of the offence, and the circumstances and culpability of the offender;

(ii)  the sentencing guidelines are largely based on the weight of the narcotic and because of the grievousness of the offence, mitigating factors will carry little, if any, weight;

(iii)  the sentencing guidelines provide consistency and predictability and are desirable in the interests of fairness and equal justice;

(iv)  the suggested sentencing bands are guidelines and not straitjackets, which can be departed from if there is a good reason to do so; and

(v)  the sentencing guidelines apply to the likes of a drug courier which may be enhanced for offenders in the upper levels of the hierarchy of the drug trade.[23]

65.He submits that the main issue in the present appeal is whether in fact sentencing courts have sufficient discretion to take into account the different degrees of culpability as well as personal circumstances and mitigating factors of individual offenders.  He contends that the leeway afforded to sentencing courts to impose sentences lower than the guidelines for a given quantity of a given drug is “negligible”.  He says this is evident from a survey of cases where discounts of only a few percentage points are usually given, except in cases where the offender has rendered assistance to the authorities.

66.He acknowledges that there have been repeated judicial pronouncements of the sentencing court’s discretion in drug trafficking cases, and refers to the early case of Chan Chi Ming v R [1979] HKLR 491, where Roberts CJ said at 493:

“Fairness to convicted persons requires a substantial degree of consistency and the punishment to be imposed for similar offences. … The tariff is intended for the guidance of courts, to be generally applied. It is not intended to prevent them from imposing greater or lesser punishments in the special circumstances of any case.”

67.He complains that the sentencing guidelines in drug trafficking cases are treated as minimum sentences depending upon the narcotic content involved and that this limits the sentencing court’s discretion when dealing with drug couriers.

68.He further complains that because the sentencing guidelines are largely based upon the weight of the narcotic content of the drugs, that this appears to place the convenience of the courts before the need to apply an adequate determining principle to individual sentences.  He refers to following the comments of Stuart-Moore ACJHC (as he then was) in HKSAR v Burnales [2000] 4 HKC 636 at 639 and 640:

“It is quite apparent from this passage in Lau Tak Ming[24] that the court had no intention of treating couriers or storekeepers of heroin as if they were deserving of more lenient treatment than the guideline tariffs generally suggest. The same would obviously apply to couriers and storekeepers of ice. Not even youth, old age or disability will carry much weight and more often than not it carries none.

The policy of this court in relation to trafficking in drugs of these kinds has been to maintain a consistent level of sentencing under the guideline cases earlier mentioned so that potential traffickers, who are frequently couriers or storekeepers, will be deterred from engaging in such activities. Consistency, in this context, is related to sentences which are largely based upon the weight of the drugs being trafficked. If this court were to decide otherwise, the courts at first instance would find themselves endlessly being asked to consider the degree of culpability related to individual couriers and storekeepers. The guidelines, whilst of course not strait-jackets, are there to provide and maintain consistency of sentence between all offenders who traffick in dangerous drugs. It is important for the courts to avoid distinctions, which will often be irrational or speculative, being drawn between drug traffickers who are couriers or storekeepers because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.

Whilst those who play an aggravated role in the drugs trade, such as the manufacturers, the wholesalers and the ‘bosses’ who send the couriers out onto the streets to traffic can all expect longer sentences than the couriers and storekeepers, the couriers and storekeepers themselves cannot expect to receive less than the tariff sentence.”

69.Mr Bullett takes issue with the statement in the quoted passage that sentencing courts should avoid distinctions being drawn between drug traffickers who are couriers or storekeepers.  He submits that under the present sentencing regime, individual mitigating factors are not in practice, or to any meaningful degree, taken into account, and the severity of the sentence depends almost entirely on the type and quantity of the drug, which may not be known to the courier.  He argues that a random element is potentially imported into the sentencing process, by which we assume he means the weight of the narcotic, and this results, he submits, in procedural unfairness to a defendant.

70.He submits on the basis of the foregoing arguments that the sentencing guidelines for drug couriers unduly restricts the ability of the courts to vary sentences for the role and circumstances of individual defendants and imposes mandatory minimum sentences which are manifestly disproportionate to the criminality involved, and thus arbitrary and in violation of BOR 5 and BL 28.

71.We observe, at this stage, that Mr Bullett’s submission ignores the underlying rationale of the sentencing guidelines, which are based on the weight of the narcotic.  This was explained and laid out nearly 30 years ago in Lau Tak Ming and has been consistently applied since then.  Furthermore, it is a fundamental principle that for a sentencing court to depart from the sentencing guidelines, there must be “special circumstances” or “a good reason” for doing so.  The approach a sentencing court should take was briefly described by McWalters JA in Kilima in the following terms:

“145. Under the current law the first step for a judge is to determine where within the relevant sentencing band he should take his starting point. In determining this issue the judge will initially have regard to the weight of the narcotic. This purely arithmetically arrived at period of imprisonment is just an initial starting point and, in the exercise of his sentencing discretion, the judge may depart from it. However, as this court has said on a number of occasions, if the judge intends to depart significantly from this initial starting point he should say so and explain his reasons for so doing.

146. However, it is clear that on the present state of the law, a judge cannot depart from an arithmetically arrived at starting point to allow for the fact that the role of the offender in the drug trafficking was only that of a courier. The effect of Manalo and Leung Kwai Ping is that such a starting point is appropriate for couriers as it already takes account of their low level of involvement in the commission of the drug trafficking offence. A higher level of involvement in the offence will justify an upwards adjustment of the starting point.”[25]

(f) The respondent’s submission

72.Ms Lai[26] accepts that the discretion of the court is important in the sentencing process because it enables it to consider the basic sentencing principles and apply them to the particular facts of the offence and the circumstances of the offender.  She acknowledges, as did Mr Bullett, that the objective of a sentencing court is to provide individual justice by ensuring that the sentence is proportionate and reflects the gravity of the offence and the culpability of the offender.

73.She submits that the sentencing guidelines are conducive to maintaining consistency and preventing arbitrariness.  She refers to the comments of Silke VP in Attorney General v Dil Bahadur Gurung, who said at 483A that “[i]t is part of the duty of this court to give guidelines where such guidelines would be appropriate in respect of matters of sentences.”

74.The Court of Appeal had previously dismissed the claim that the sentencing guidelines restrict or interfere with the court’s discretion in sentencing.  In Chan Chi Ming at 493, the Court of Appeal stated:

“It may perhaps be objected that in attempting to prescribe a tariff for this offence, we are interfering improperly with the discretion of courts of trial. We do not think so, for the following reasons-

(a) This court is, save in very rare cases, the final judicial body for Hong Kong;

(b) It is the duty of such a court, as we conceive it, to give guidance to courts within the territory;

(c) Fairness to convicted persons requires a substantial degree of consistency in the punishment to be imposed for similar offences;

(d) While there can never be perfect consistency, since the facts of each case and the record, character and circumstances of convicted persons differ, justice requires that there should not be wide variations in punishment because of individual views of judges or magistrates;

(e) The tariff is intended for the guidance of courts, to be generally applied. It is not intended to prevent them from imposing greater or lesser punishment in the special circumstances of any case.” (Emphasis added)

75.She also submits that sentencing guidelines serve a legitimate societal interest in providing a necessary degree of certainty to the law and reasonable predictability and consistency in the sentencing of similar offences.

76.As rightly pointed out by Ms Lai, there are also safeguards in place to ensure that the sentences imposed are fair and appropriate, and not manifestly disproportionate.  First, the sentence for an offence must accord with the law.  Secondly, sentencing guidelines are laid down by the Court of Appeal after the receipt of relevant evidence and informed consideration. Thirdly, the sentencing guidelines can be challenged through the appeal process.

77.It is further contended by Ms Lai that the existence of sentencing guidelines does not tie the hands of a sentencing court in the exercise of its discretion, and can be departed from if there is a good reason to do so.  See Attorney General v Yau Koon Yau [2002] 4 HKC 685, at 688.

78.It is acknowledged by Ms Lai that the sentencing guidelines for drug trafficking that apply to couriers are primarily focused on the sentencing principle of deterrence.  She argues that drug trafficking offences are serious in nature and offenders should be severely punished.  Such a proposition has been repeatedly stated by this Court as seen in the comments of Stuart-Moore ACJHC in Burnales that have been previously quoted, where he stressed the importance of deterrence in drug trafficking cases and of Silke VP in Lau Tak Ming who stated that “these are offences of the utmost gravity, which may well result in mitigating factors which, for less serious offences, could lead to a discount, bearing little weight.”[27]

79.The position of the respondent is that a defendant who is a courier is not a mitigating factor in drug trafficking cases and that the sentencing guidelines that apply to couriers are Basic Law compliant.

(g) Discussion

80.The legislature has prescribed the ultimate punishment under our criminal justice system of a maximum of life imprisonment to reflect the inherent gravity and seriousness of the crime of trafficking in a dangerous drug.  The sentencing guidelines for drug trafficking are severe but in line with the statutory penalty.

81.Sentencing guidelines are formulated and evolved by the Court of Appeal as part of its supervisory role to ensure equal and consistent justice in the treatment and punishment of offenders for particular offences.  This is done by the Court in the exercise of its judicial power when adjudicating cases.  See Chapter IV, Section 4 of the Basic Law.  Sentencing guidelines therefore form an essential part of the common law and provide a lawful means by which an offender is sentenced.  See BL 8 and BL 18 which recognise that the common law is part of the laws in force in the Hong Kong Special Administrative Region.

82.Sentences passed by a court in accordance with the sentencing guidelines for drug trafficking are lawfully imposed and therefore the issue is whether such sentences are arbitrary because they infringe BL 28.

83.For the appellant to show that couriers convicted of drug trafficking when sentenced in accordance with the sentencing guidelines are subject to arbitrary imprisonment, it must be demonstrated that the imprisonment is “capricious, unreasoned or without reasonable cause”, or put in another way, “manifestly disproportionate”.

84.It is commonly acknowledged that the classical principles of sentencing involve retribution, deterrence, prevention and rehabilitation.  It was suggested by Lawton LJ in R v Sargeant (1974) 60 Cr App R 74 that a sentencing court ought to always have these classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he or she is dealing.  Ultimately, the punishment of an offender for having committed a crime must be just and proportionate, and serve the public interest in maintaining appropriate standards of behaviour by individuals and entities as prescribed by law, and in protecting the community from the harm and consequences of criminal misconduct.

85.It is well to remember the observations of Stock JA (as he then was) in HKSAR v Leung Pui Shan, CACC 317/2007, 5 February 2008, unreported, who pointedly remarked that sentencing is an art, “which must carefully be moulded, not only to the category of offence but to the offender.  There is a danger of sentencing becoming over mechanical with too little regard for the unusual circumstances that might arise in relation to the commission of particular offences and too little regard to circumstances peculiar to the offender.”[28]  He went on to stress:

“… the need for individual justice having regard, of course, to the policy considerations that might dictate in a category of case stern general approach but never forgetting the fact that the courts are on each sentencing occasion dealing with an individual whose peculiar circumstances, if they exist, always deserve careful attention. Consistency in sentencing is important but consistency does not dictate blindness to individual circumstances of the case and to those of an offender. An overly rigid preoccupation with uniformity can be inimical to individual justice.”[29]

86.These and similar comments by the appellate courts, while explaining how sentencing principles should be regarded and applied by a sentencing court, also emphasize the scope and importance of the court’s sentencing discretion.  It is therefore necessary when considering the application and effect of the sentencing guidelines for drug trafficking that this is done against the body of authority on sentencing policies and principles, particularly as they relate to or concern drug trafficking cases.

87.There is no doubt in our view of the importance of sentencing guidelines, and that of the underlying sentencing policies and principles on which they are found, that seek to ensure consistent and appropriate levels of punishment of offenders for offences against the criminal law.  This is a fundamental aspect in any rational and fair system of criminal justice.  In the joint judgment of French CJ, Crennan and Kiefel JJ, in the High Court of Australia in Green v The Queen [2011] 244 CLR 462, when discussing equal justice, it was stated:

“Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.”[30]

88.As for consistency in sentencing in relation to persons charged with similar offences arising out of unrelated events, they stated:

“The consistency they require is ‘consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence’. That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focused on the particular case. …”[31]

89.In the subtext of this ground, Mr Bullett advances two propositions which we will address in turn.

90.The first proposition is that the sentencing guidelines unduly restrict the ability of the courts to vary sentences for the role and circumstances of individual offenders who are couriers.  It is argued that the sentencing guidelines impose fix terms of imprisonment, or mandatory minimum sentences.

91.Sentencing guidelines by their very nature, suggest a form and level of sentence that should be appropriately imposed when sentencing a defendant for a particular criminal offence.  They normally provide a set of factors or circumstances that may be found in the commission of the offence to assist the sentencing court in determining the level of punishment as laid out in the sentencing guidelines.

92.The purpose and function of sentencing guidelines was succinctly articulated by Lord Woolf CJ in R v Millberry [2003] 1 WLR 546, at 556, who explained that they “are intended to assist the judge arrive at the correct sentence.  They do not purport to identify the correct sentence.  Doing so is the task of the trial judge.”

93.The sentencing guidelines for drug trafficking have been formulated on the basis of the nature and quantity of narcotic involved.  They provide a series of bands, setting out a range of quantities of narcotic that correspond to a range of terms of imprisonment. This Court in Kilima has reconfirmed that the sentencing guidelines apply to couriers.

94.The suggestion that the sentencing guidelines are fixed and compulsory is not correct.  A sentencing court can depart from the sentencing guidelines when the circumstances warrant it.  As one would expect, this can only be done when, as a matter of sentencing policy or principle, it is appropriate to do so.  This Court has explained that the sentencing guidelines are not a “straitjacket” and can be departed from when there is “a good reason” for doing so.  A sentencing court will, applying the sentencing guidelines, determine an appropriate starting point, taking into account the facts and circumstances of the case, subject to increase for any aggravating factors or reduction for any mitigating factors.

95.The second proposition is that the sentencing guidelines for couriers are manifestly disproportionate to the criminality involved and therefore arbitrary.  As already mentioned, this Court in Kilima has reconfirmed that the sentencing guidelines apply to couriers.  The line of authority on this point provides that the criminality involved of a courier of dangerous drugs warrants the application of the sentencing guidelines to them.  In fact, the sentencing guidelines were specifically directed to a courier or storekeeper.  Until that changes, that is the state of the law.

96.This proposition is largely based on the premise that the sentencing guidelines cannot take into account the role of an offender, such as that of a courier, and therefore sentences imposed on couriers under the sentencing guidelines are manifestly disproportionate to the criminality involved.  However, as already noted, the sentencing guidelines were specifically formulated to address the range of sentences that should be imposed on a courier or a storekeeper.  It, therefore, cannot be argued that it is arbitrary because of this factor.  The complaint is really not one of arbitrariness, but of the application of the sentencing guidelines to couriers, but that has been confirmed to be the case in Kilima.  The fact that a defendant may have played a more significant role in the trafficking of drugs would and should be visited with an upward adjustment of the sentencing guidelines.  It cannot be said that the sentencing guidelines, as they apply to drug couriers, are “capricious, unreasoned or without reasonable cause.”

97.In summary, this Court has reconfirmed in Kilima that the sentencing guidelines of Lau Tak Ming and Abdallah apply to drug couriers.  They provide important principles and guidance to sentencing courts, which still retain the flexibility to depart from them where there is a good reason to do so, and impose an appropriate sentence in the circumstances of the offence and the offender.  They are not arbitrary and do not violate BOR 5(1) or BL 28.

98.The high threshold has not been reached to strike down the sentencing guidelines of this Court as unconstitutional.  This ground of appeal therefore fails.

The revised sentence

99.The end result is that the appellant’s appeal against sentence is allowed to the extent that he should receive a discount to his sentence for the assistance that he had provided to the authorities.

100.As sentencing of the appellant is at large, we are now required to sentence the appellant afresh.  See HKSAR v Mo Hiu-fung [2014] 1 HKLRD 796; and HKSAR v Yeung Kwai-kuen [2002] 3 HKC 395.  This we must do with proper consideration and application of relevant sentencing guidelines and principles, and in the present case this includes the fact that the appellant was a Form 8 recognizance holder at the time of the offence.

101.The reduction of 6 months for the assistance rendered by the appellant to the authorities is offset by the enhancement of 6 months for the status of the appellant as a Form 8 recognizance holder, and as a consequence the appellant’s sentence remains the same, namely 6 years and 4 months’ imprisonment.

Disposition

102.It follows from what we have said that the appeal against sentence is granted but the end result is that the sentence remains the same.

Ms Anna Y K Lai, SC, DDPP and Mr Franco Kuan, SPP of the Department of Justice, for the Respondent

Mr Andrew Bullett, instructed by Tanner De Witt, assigned by the Director
of Legal Aid, for the Appellant