Read the full judgment text of CACC 50/2019 on BabelCite. This Court of Appeal judgment was delivered on 2 March 2021 before Hon Yeung VP, Pang JA and M Poon J.
Criminal law – drug trafficking – drug manufacturing – dangerous drugs – cocaine – 'Ice' – sentencing – appeal against sentence – Court of Appeal – starting point – sentencing guidelines – totality principle – guilty plea discount – consecutive sentences – Appellant pleaded guilty in the Magistrates' Court to four charges: trafficking in 290g of cocaine, manufacturing cocaine at his residence at The Parkhill (involving 1.747kg of cocaine and drug-manufacturing paraphernalia), possession of 4.65g of 'Ice', and manufacturing cocaine at a second residence on Hong Lok Road (involving 914g of cocaine and further paraphernalia); he was committed to the High Court for sentence – Police stopped the appellant carrying the cocaine in a paper bag; searches of the two residences, entered with the appellant's electronic lock passcode, recovered approximately 3kg of cocaine in total, large quantities of baking powder and drug-manufacturing paraphernalia; the appellant admitted manufacturing for about a year – Whether the starting point for drug-manufacturing offences should be a fixed multiple of the starting point for drug-trafficking offences involving the same quantity of drugs – Held: No, there should be no fixed proportion; the starting point must be based on the overall circumstances of each case, including scale, duration, productivity, quantity and standard of paraphernalia, the offender's role, and the quantity of drugs seized – Whether the trial judge's adoption of a 1.6 times multiplier (after rejecting defence counsel's 1.8 times suggestion) for the manufacturing starting points was correct – Held: The multiplier approach is conceptually problematic; however, the instant case was sufficiently serious to warrant a combined starting point of 34 years for the two manufacturing charges, not 72 years – Whether the overall sentence of 27 years (equivalent to a starting point of over 40 years) was manifestly excessive – Held: Yes; in drug cases, even the most serious, starting points rarely exceed 35–40 years' imprisonment, and life sentences are reserved for exceptional cases under the Hodgson criteria – Whether the sentence for Charge 1 (trafficking 290g of cocaine) should run concurrently with the sentences for Charges 2 to 4 (manufacturing and possession) – Held: No, Charge 1 represented a separate and distinct criminal role (delivering drugs to a buyer pursuant to a sales arrangement) and the trial judge's order of 1 year and 8 months consecutive from Charge 1 was appropriate – Sentence ranges and guidelines considered: Abdallah guideline indicating up to 25 years' starting point for trafficking approximately 3kg of cocaine; Wong Chun Ping guideline that manufacturing sentences should rarely fall below 10 years; Cheung Wai Kwong principle that manufacturing is more serious than trafficking and the offender is nearer the source of the evil – Comparison with authorities: trafficking 306kg morphine salt (Ng Muk-kam) — 35 years; trafficking 34.232kg 'Ice' (Lee Ming-ho) — 37 years; trafficking 422.5kg cocaine (Heric Rivas) — 37–38 years – Appeal against sentence allowed; sentences for Charge 2 and Charge 4 reduced to 22 years and 8 months and 20 years respectively; sentences for Charges 2 to 4 concurrent; 1 year and 8 months consecutive from Charge 1; total sentence 24 years and 4 months
Legal issues: Whether the starting point for drug-manufacturing offences should be a fixed multiple of the starting point for drug-trafficking offences with the same quantity of drugs · Whether the trial judge's overall starting point of over 40 years for the four charges was manifestly excessive · Whether the sentence for Charge 1 (trafficking 290g of cocaine) should be served concurrently with the sentences for Charges 2 to 4 (manufacturing and possession)
Outcome: Appeal against sentence allowed; sentences for Charge 2 and Charge 4 reduced; overall sentence reduced from 27 years to 24 years and 4 months.
Cited by 14 cases · Cites 6 cases