Read the full judgment text of CACC 93/2019 on BabelCite. This Court of Appeal judgment was delivered on 26 November 2020 before Yeung VP, Macrae VP and Zervos JA.
Criminal law – drug trafficking – Dangerous Drugs Ordinance (Cap 134) s.4(1)(a) and (3) – trafficking in 63.5 grammes of solid containing 48.3 grammes of cocaine narcotic – appellant intercepted at Hong Kong International Airport after flight from Dar Es Salaam via Addis Ababa – US$1,800 in cash found in possession – sentencing guidelines – starting point – role and culpability of offender – couriers and storekeepers – one-third discount for guilty plea – discretionless arithmetical calculation – totality principle – forfeiture order under s.56(1) of the DDO – whether Court of Appeal has jurisdiction to entertain appeal against forfeiture order – whether forfeiture order within scope of s.56(1) – whether judge's reasons adequate – fresh evidence on appeal – assistance to Father Wotherspoon's anti-drugs campaign. The appellant, a 43-year-old Tanzanian national, arrived at Hong Kong International Airport on 22 November 2017 from Dar Es Salaam via Addis Ababa. She tested positive for cocaine on ion-scan and X-ray, and subsequently discharged six packets of cocaine. US$1,800 in cash was found in her possession. She pleaded guilty before a magistrate and was committed to the High Court for sentence, where Deputy Judge Lugar Mawson imposed 5 years and 8 months' imprisonment and ordered the US$1,800 forfeited under s.56(1)(a) of the DDO. On appeal, the Court of Appeal (Yeung VP, Macrae VP and Zervos JA) dismissed both the appeal against sentence and the appeal against the forfeiture order. The court provided extensive sentencing guidance, holding that a strict discretionless arithmetical approach to calculating the starting point is not correct: sentencing in drug trafficking cases requires the court to assess the defendant's role and culpability, not merely apply a mathematical formula to the drug quantity. The court identified a six-stage sentencing process: (1) identify the relevant guideline band; (2) assess the defendant's role and culpability; (3) identify where within the band the defendant falls; (4) consider aggravating factors; (5) consider mitigating factors and discounts at the same time; and (6) apply the totality principle. The court rejected Mr Walsh's argument for a discretionless arithmetical starting point, holding that personal mitigation, while of limited weight in drug trafficking cases, should be considered at the same time as the plea discount rather than before it, to avoid distortion of the sentence. On the specific facts, a 6-week departure from the arithmetical starting point did not warrant appellate interference. The court also held that the Court of Appeal has jurisdiction to entertain an appeal against a forfeiture order made under s.56(1) of the DDO, as such an order is a 'sentence' within the meaning of sections 80 and 83G of the Criminal Procedure Ordinance (Cap 221), following HKSAR v Chai Man-fong, R v Hayden and Customs and Excise Commissioners v Menocal. The court applied the majority decision in HKSAR v Ngoma Juma Shabani, holding that cash found in a trafficker's possession is 'used in connection with' a drug offence where it enables the trafficker to pass himself off as a legitimate visitor while waiting to discharge the drugs. The appellant's challenge to the adequacy of the judge's reasons was rejected, as was her claim that the forfeiture was outside the scope of s.56(1). The court gave no discount for the appellant's purported assistance to Father Wotherspoon's campaign, holding that the letter written to the prison chaplain showed no more than that another trafficker had been caught. Sentencing math: Starting point 8 years for quantity of cocaine; enhanced by 6 months for international element to 8.5 years; reduced by one-third for early guilty plea to 5 years 8 months' imprisonment; US$1,800 ordered forfeited.
Legal issues: Whether sentencing judge erred by adopting a starting point exceeding the arithmetically calculated starting point · Whether the Court of Appeal has jurisdiction to entertain an appeal against a forfeiture order · Whether the judge's reasons for making the forfeiture order were inadequate · Whether the forfeiture order was within the scope of section 56(1) of the DDO · Whether fresh evidence of assistance to Father Wotherspoon's campaign warrants a further discount on sentence
Outcome: Appeal against sentence and appeal against the forfeiture order both dismissed.
Cited by 115 cases · Cites 39 cases