Read the full judgment text of CACC 67/2019 on BabelCite. This Court of Appeal judgment was delivered on 3 June 2020 before Hon McWalters JA and Zervos JA.
Criminal law – dangerous drugs – trafficking – sentencing – combined approach – two or more drugs – cocaine and ecstasy – Dangerous Drugs Ordinance Cap 134 s.4(1)(a) and (3) – sentencing guidelines – HKSAR v Lau Tak-ming and Hii Siew Cheng – HKSAR v Yip Wai Yin – base drug determination – potency over quantity – conversion test – ratio test – absurdity test – Form 8 recognizance holder – enhancement – guilty plea discount – one-third discount – The appellant, a 28-year-old Bangladeshi national and Form 8 asylum seeker, was found in possession of 51.7 grammes of cocaine and 479.26 grammes of ecstasy (street value $81,905 and $192,500 respectively) in Room 5 of a Sham Shui Po subdivided flat after police forced entry. He admitted receiving the drugs from a person named "Ali" outside Chungking Mansions and was keeping them pending further instructions, and pleaded guilty at the earliest opportunity. He was sentenced to 9 years and 6 months' imprisonment by Toh J. The Court of Appeal allowed the appeal and reduced the sentence to 8 years and 10 months, holding that the sentencing judge erred in using ecstasy as the base drug under the combined approach because cocaine is the more potent drug – The proper methodology required selecting the more serious drug in terms of potency as the base drug, not the drug in greater quantity, and combining quantities under a single drug's guidelines is only appropriate where the respective sentencing guidelines are very similar – Whether the starting point of 14 years 3 months was manifestly excessive – held yes, the starting point was manifestly excessive because it was derived from an incorrect methodology – cross-checks against the conversion test (12 years 1 month to 12 years 5 months), ratio test (11 years 10 months) and absurdity test (18 years 3 months) confirmed the correct notional starting point was 13 years 3 months – After applying the full one-third discount for the timely guilty plea, the final sentence was 8 years and 10 months – Appeal allowed; sentence of 9 years and 6 months set aside; substituted with 8 years and 10 months' imprisonment.
Legal issues: Correct methodology for determining the base drug under the combined approach in two-drug trafficking cases · Whether the starting point of 14 years and 3 months was manifestly excessive · Appropriate final sentence after applying guilty plea discount
Outcome: Appeal allowed; sentence of 9 years and 6 months' imprisonment set aside and substituted with a sentence of 8 years and 10 months' imprisonment.
Cited by 111 cases · Cites 7 cases