HKSAR v. Lee Ming Ho

CACC 130/2019, [2024] HKCA 150

On Appeal From [2019] HKCFI 1150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 130 OF 2019

(ON APPEAL FROM HCCC NO 367 OF 2016)

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JUDGMENT  AND  REASONS  FOR  JUDGMENT

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Hon Macrae Acting CJHC (giving the Judgment and Reasons for Judgment of the Court):

A.  Introduction

1.The applicant faced one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“Count 1”), and one count of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (“Count 2”). On 18 March 2019, he pleaded not guilty to Count 1, but guilty to Count 2. The applicant subsequently stood trial in the High Court before Campbell‑Moffat J (“the judge”) and a jury in relation to Count 1 only. On 29 March 2019, he was convicted and, on 4 April 2019, sentenced by the judge to 37 years’ imprisonment on Count 1, and 4 months’ imprisonment on Count 2 to run wholly consecutively to the sentence on Count 1, making a total of 37 years and 4 months’ imprisonment.

A.1.  Procedural history

2.By a Notice of Appeal dated 26 April 2019, the applicant applied for leave to appeal against his conviction and sentence. However, legal aid was granted in relation to conviction only. Nearly two years later on 4 March 2021, the applicant abandoned his application for leave to appeal in relation to sentence only by way of a Notice of Abandonment, and his application was formally dismissed pursuant to Rule 39 of the Criminal Appeal Rules, Cap 221A, on the following day. The leave application regarding conviction proceeded and was duly fixed for hearing.

3.We should mention at this stage that three other persons, Chu Ho Wa (“Chu”), Li Chin Pang (“Li”) and Fung Kin Fung (“Fung”), had been involved, and originally charged, with the same drug trafficking offence. They had initially stood trial with the applicant on a joint indictment before another judge in September 2017. However, on 26 September 2017, the applicant absconded from the trial during Chu’s evidence-in-chief. The trial nevertheless continued and Chu and Li were duly convicted, while Fung was acquitted. The applicant was apprehended on 27 April 2018 (leading to the addition of Count 2 on the indictment), and subsequently stood trial alone before the judge, who passed the sentence that is now before us. Chu and Li both gave evidence for the prosecution against the applicant at his new trial.

4.Chu and Li’s appeals against sentence subsequently came before the Court of Appeal[1], on the basis that they had assisted the prosecution by giving material evidence against the applicant at his trial. On 30 November 2021, this same Court allowed Chu and Li’s appeals and reduced their respective sentences from 33 years’ imprisonment to 24 years’ imprisonment[2].

5.The applicant’s leave application in relation to conviction was also heard by the Court of Appeal on 30 November 2021. However, his application was adjourned to allow the applicant to reconsider his position in relation to sentence, for which purpose legal aid was granted. Subsequently, by an affirmation dated 8 April 2022, the applicant applied to treat the abandonment of his appeal against sentence as a nullity.

6.On 18 May 2023, the Court of Appeal reconvened to deal with the applicant’s leave application in relation to conviction, his application to treat the abandonment of his sentence appeal as a nullity and, if necessary, his ensuing application for leave to appeal against sentence. After a short adjournment, during which the applicant received advice from his counsel, Mr Randy Shek, he decided to abandon his leave application in relation to conviction, which was duly dismissed by the Court. We then heard submissions on the applicant’s behalf that he should be permitted to treat the abandonment of his sentence appeal as a nullity. After hearing argument, we allowed his application.

7.The applicant had from the outset indicated his wish to appeal against his sentence, which was not perhaps surprising given that it was, at the time it was passed, believed to be the longest sentence ever imposed for an offence of trafficking in dangerous drugs in this jurisdiction[3]. He appears to have had no legal advice on the matter and, when legal aid was refused, he abandoned his application. For reasons we shall deal with in more detail at [18]-[27] infra, we concluded that we should treat the applicant’s Notice of Abandonment as a nullity.

8.We then adjourned the hearing of 18 May 2023 in order to receive further submissions from both parties as to how the appellate decisions in HKSAR v Abdallah[4]and HKSAR v Chung Ping Kun[5] should be construed and applied in the wake of this Court’s most recent sentencing guidelines and approach set out in HKSAR v Herry Jane Yusuph[6].

9.On 2 August 2023, we reconvened to consider the applicant’s revived application for leave to appeal against sentence in the light of these further submissions, and reserved our judgment. This, therefore, is the judgment of the Court in relation to our reasons for treating the applicant’s abandonment of his appeal as a nullity, and our decision as to his appeal against sentence.

B.  In the High Court

B.1.  The facts

10.By its verdict, the jury unanimously found the applicant guilty of unlawfully trafficking, together with Chu and Li, in 34,868 grammes of a crystalline solid containing 34,232 grammes of methamphetamine hydrochloride (commonly known, and which we shall continue to refer to, as “Ice”).

11.It was the prosecution case that a consignment of “Ice” had been arranged to arrive at Repulse Bay, on Hong Kong Island, by boat from the Mainland. Pursuant to the arrangement, the applicant approached one “Hung Gor”, who was asked to recruit others to collect and transport the dangerous drugs. Hung Gor contacted Li and offered him HK$10,000 to help collect the consignment. Li in turn recruited Chu, who agreed to take part in the enterprise for HK$5,000. At about 6 pm on 26 February 2016, Chu and Li met up with Hung Gor at a tea house in Ap Lei Chau, on Hong Kong Island, where they were introduced to the applicant and Fung. Chu and Li were told to follow the applicant’s instructions. The applicant then talked on the telephone and was overheard saying that the consignment of “Ice” would be coming from Xiaomeisha in Shenzhen, on the Mainland. At the time of these events, the applicant was the eldest of the four men by at least 15 years: Chu was 23 years of age; Li was 22; Fung was 19; and the applicant was 38.

12.The applicant then instructed Chu and Li to follow him from Ap Lei Chau to Repulse Bay. Accordingly, they boarded Li’s light goods vehicle (“the LGV”) and followed a white private car, driven at that stage by the applicant with Fung as the passenger. The applicant told Chu and Li that the dangerous drugs were arriving and instructed them to transport the goods onto the LGV. Meanwhile, the applicant and Fung drove off in the white private car to a nearby 7-Eleven store. In due course, a speedboat arrived on the shoreline of Repulse Bay, from which Chu and Li took delivery of a box and a suitcase and placed them in the LGV. The applicant then telephoned Li and instructed him to meet the white private car outside the 7-Eleven store. Li did as he was instructed and the two vehicles drove off together in convoy to Kowloon, the white private car leading the LGV. By this stage, Fung was driving the white private car, with the applicant as the passenger.

13.At some point, the applicant learned that there was a roadblock set up by the police along the route, so he directed the LGV to stop, while the applicant conducted a reconnaissance exercise. The applicant then instructed Li to drive the LGV to Yau Ma Tei, in Kowloon. When Li said he did not know the way, the applicant told him to follow the white private car. When the LGV and the white private car reached Waterloo Road, the police intercepted the two vehicles. Chu and Li tried to flee: the applicant and Fung remained in the white private car. The “Ice” was duly discovered in the LGV. At the time of the offence, the estimated market price of the dangerous drugs exceeded HK$10 million.

B.2.  Mitigation

14.It was suggested in mitigation that the applicant was “only one rung higher” than Chu and Li in the drug trafficking operation and that there was no evidence that the applicant was the “mastermind”, although he was to “oversee” the delivery. It was further said that even if the applicant was at the “mid-management” level of the enterprise, he was still “very low” in the overall scheme of the operation. Nevertheless, counsel for the applicant acknowledged that the applicant “would deserve a higher sentence than the 33 years imposed” upon Chu and Li[7].

B.3.  Reasons for sentence

15.On the evidence, the judge found that the applicant was “clearly not an innocent dupe nor a foolish young man” and was of a “much higher ranking” in the drug trafficking enterprise. She remarked that the applicant had deliberately sought to distance himself from the dangerous drugs by making Chu and Li assume the risk of collecting the consignment; their involvement in the offence must be laid at the applicant’s door[8].

16.The judge made reference to Abdallah, and adopted a starting point of 33 years’ imprisonment in respect of the 34 kilogrammes of “Ice” seized. She then enhanced the sentence by 2 years’ imprisonment for the international element, since the dangerous drugs had entered Hong Kong from the Mainland and the applicant must have known that; and a further 2 years’ imprisonment for the applicant’s higher position in the hierarchy of the trafficking enterprise. Of the applicant’s role, the judge said[9]:

“I do not think that is the least unjust especially as it is clear that neither Chu nor Li actually knew where the drugs were coming from when they agreed to take part. You were also not simply a courier. You were someone of some power and influence or at least someone for those in power who felt that they could rely upon to look after $10 million worth of drugs.

Looking at totality of sentence, I nevertheless intend to enhance your sentence by a further 2 years because of what I believe was the significant position you held in importing a large quantity of dangerous drugs into Hong Kong. If I did not do so, those actually responsible for the ill fortune of their couriers serving large sentences would receive no more severe punishment than those foolish enough to do their bidding but who are not the ones who profit from this evil crime. That makes 37 years on Count 1.”

17.In respect of Count 2, the judge adopted a starting point of 6 months’ imprisonment. Having discounted the sentence by one-third for the applicant’s plea, she ordered the whole of the resulting 4 months’ imprisonment to run consecutively to the sentence on Count 1, since it was a distinct and separate offence. The final sentence imposed thus became 37 years and 4 months’ imprisonment.

C.  Application to treat abandonment as a nullity

C.1.  Applicant’s evidence

18.As we have already mentioned, the applicant filed a Notice of Abandonment of his application for leave to appeal against sentence on 4 March 2021, nearly 2 years after giving notice of his intention to appeal against both conviction and sentence. He sought to revive his leave application after the hearing in November 2021. To that end, he filed an affirmation[10] to explain the circumstances in which he had signed the Notice of Abandonment. Given that any abandonment is not to be lightly set aside, we should detail the evidence we received on this matter.

19.In July 2020, the applicant was granted legal aid in relation to his application for leave to appeal against conviction only. As a result, the applicant did not have, and had never had until his arrival before this Court on 30 November 2021, legal advice regarding his sentence.

20.A Notice of Hearing, dated 25 January 2021, informed the applicant of the hearing date. By a letter, dated 17 February 2021, the applicant wrote to the court saying that he had “decided to temporarily cancel my application for leave to appeal against sentence in order to obtain legal advice”[11]. By a letter, dated 23 February 2021, the Registrar of Criminal Appeals reminded the applicant of the consequences of abandonment, and that he should carefully consider whether to give up his leave application; if he decided to do so, he should file a formal Notice of Abandonment to that effect. The Registrar further reminded the applicant that, given that the hearing was due to be heard on 30 November 2021, he should obtain legal advice promptly[12]. The applicant said that he interpreted the Registrar’s letter to mean that it was not “impossible” to reinstate the appeal after “putting it on hold”[13].

21.On 1 March 2021, a clerical staff at Shek Pik Prison asked the applicant if he was going to withdraw his appeal against sentence and told him that he must reply to the court. The applicant was given a template to copy, without any explanation as to what it was. The template included the statement, “I understand and agree that once the Notice of Abandonment of appeal is accepted by the court, it would be impossible or very difficult for me to restore the right to appeal” (“the 1^st March Statement”)[14]. On 4 March 2021, a staff member of the Correctional Services Department asked the applicant to sign a document in English, which the applicant said he did not understand. The applicant believed that he needed to sign the document as part of his application so as “to put my appeal against sentence on hold”. The applicant did so, and it transpired that the document was the Notice of Abandonment[15].

22.The applicant contended that he did not fully understand the implication of the 1^st March Statement or the Notice of Abandonment. His understanding had always been that it would be possible, however difficult and troublesome, to reignite his appeal against sentence and he believed the wording in the 1^st March Statement was no more than a formality. He had always expected that his lawyer would be able to deal with the legal requirements in reviving his leave application[16].

23.The applicant’s case was not that the officers of the Correctional Service Department had misled him into making the 1^st March Statement and signing the Notice of Abandonment. Rather, he averred that at the time of making those documents he was not making an informed decision, since he had not had legal advice when he had always wanted to appeal his sentence and his intention was to put his appeal against sentence in abeyance temporarily, as explained in his letter of 17 February 2021[17].

C.2.  Correctional Services Department officers’ evidence

24.Mr Fung Kwong Chuen, an assistant clerical officer concerned with ‘prisoner matters’, filed an affirmation with the court[18] averring that, on 1 March 2021, he had approached the applicant at the latter’s request. The applicant told him that he would like to abandon his appeal against sentence. Accordingly, Mr Fung provided the applicant with a blank set of “Person in Custody Submission”, as well as some standard phrases for his reference. Mr Fung said that the applicant had never told him he only intended to put his leave application temporarily in abeyance. He told the applicant that he should sign a Notice of Abandonment within the following few days.

25.Mr Chang Chi Choi, a superintendent of the Correctional Services Department, affirmed[19] that, on 4 March 2021, Mr Fung brought the applicant to see him in relation to the 1^st March Statement. Mr Fung read aloud the contents of the Notice of Abandonment in Cantonese to the applicant, who then completed and signed the Notice, witnessed by Mr Chang. The applicant did not say that it was his intention to place his appeal against sentence temporarily in abeyance.

C.3.  The Court’s decision

26.There can be no criticism of the Correctional Services Department officers in this matter and the applicant has not sought to make any: the two versions before us are not mutually exclusive. What we cannot help but conclude, on the available contemporaneous evidence, is that for almost two years it was clearly the applicant’s intention, not surprisingly in view of its length, to appeal his sentence; and that when he did “abandon” his appeal, he genuinely thought it was on a provisional basis and his appeal could be reinstated, if necessary, in due course. It is also clear, given the length of the sentence as apparently the longest sentence to be passed in Hong Kong for this offence, that he ought to have obtained legal advice on the merits of his appeal against sentence; but, unfortunately, until this Court intervened, he had never received it. We were quite satisfied on the evidence placed before us that the applicant’s mind did not go with his act at the time of the abandonment of his appeal against sentence.

27.The Court was further concerned that there were important sentencing principles at stake, which would warrant legal aid being granted. If the sentence were to be left unaddressed, it could have a significant impact on other sentences in future whenever very large, or vast, quantities of dangerous drugs were involved.

D.  Application for leave to appeal against sentence

D.1.  Grounds of appeal

28.Mr Shek, on behalf of the applicant, having noted the reduced starting points for sentence approved by this Court in the cases of Chu and Li, namely 30½ years and 31 years respectively, submitted that the applicant’s starting point should be similarly reduced. He suggested that a starting point of 30½ years’ imprisonment was appropriate in the applicant’s case, which could then be adjusted upwards for both the applicant’s significant role in the trafficking operation and the international element, in accordance with the judge’s findings and the approach in Herry Jane Yusuph. However, he invited the Court to consider an overall sentence that would not be a “crushing” one.

29.He further called on the Court to lay down sentencing guidelines for trafficking in substantial quantities, since the existing guidelines only catered in general terms for more than 15 kilogrammes of the relevant dangerous drugs.

D.2.  The respondent’s response

30.Mr Ira Lui, on behalf of the respondent, acknowledged that the initial starting point of 33 years’ imprisonment adopted by the judge was “robust” in the light of this Court’s reduced starting points for Chu and Li. Whilst the judge had correctly identified the applicant’s “significant position” and the international element to be serious aggravating factors, thereby justifying an enhancement of the starting point, Mr Lui accepted that it was arguable the judge did not adequately address the issue of the totality of the enhancements for more than one aggravating feature. On this basis only, he conceded that there might be room for a downward adjustment of the sentence.

E.  Supplemental submissions by the parties

31.The Court raised with the parties its concern about two matters, which had arisen from the decision in Herry Jane Yusuph. The first was whether, and if so how, the “further guidelines to supplement those in R v Lau Tak Ming” as set out by Stuart-Moore VP on behalf of the Court, at [40]-[43] of Abdallah, could continue to operate in conjunction with the new approach outlined by the Court in Herry Jane Yusuph. The second was whether the enhancement for the international element, which had been listed in Abdallah as a specific aggravating factor (later to be measured by further specific enhancements in accordance with quantity under Chung Ping Kun) might result in “double counting”, when the role and culpability of an offender was to be assessed under the new approach in Herry Jane Yusuph.

32.To appreciate our concern, it is necessary to recite the relevant paragraphs dealing with the supplementary guidelines set out in Abdallah:

“Guidelines to supplement to R v Lau Tak Ming

40. We consider, for the reasons we have given, that this is an appropriate time to issue further guidelines to supplement those in R v Lau Tak Ming. The sentencing guidelines for up to and including 600 g of heroin after trial, as set out in R v Lau Tak Ming, will remain in place but as these do not provide sentencing guidance for heroin traffickers in amounts above 600 g, we propose to extend the guidelines to cover the most serious trafficking offences of this kind. These guidelines do not take into account any aggravating circumstances which may also be involved.

41. The guideline starting points for traffickers after trial, subject to enhancement, will be as follows:

(i) 600 to 1,200 g − 20 to 23 years’ imprisonment;

(ii) 1,200 to 4,000 g – 23 to 26 years’ imprisonment;

(iii) 4,000 to 15,000 g − 26 to 30 years’ imprisonment;

(iv) Over 15,000 g – At the sentencer’s discretion.

42. It will be an aggravating factor calling for the enhancement of the starting point where, for example:

(1) An international element is involved;

(2) The trafficker has previously been convicted of trafficking in dangerous drugs;

(3) The trafficker is shown to be a mastermind or senior player, such as a financier, in a syndicate; or

(4) The offender is shown to have engaged a young person to assist in the trafficking.

43. We do not envisage that the enhancement, for any of the reasons we have itemised, for amounts above 1 kg will be less than 2 years’ imprisonment in addition to the new guideline tariffs we have set out.”

E.1.  The applicant’s submissions

33.For his part, Mr Shek contended that Abdallah, apart from the sentencing bands in relation to the quantities of heroin or cocaine set out at [41] of the judgment, should be considered to have been superseded by Herry Jane Yusuph, which provided for a more structured and principled approach to sentencing in this area of the law. Mr Shek took issue with the supplementary guidelines put forward in Abdallah. He argued that a minimum of 2 years’ imprisonment on top of an already very long sentence for any one of the factors identified where more than 1 kilogramme of narcotic was involved was arbitrary and unnecessarily uniform, and made no allowance for different circumstances; noting that a different division of this Court in HKSAR v Yeung Lee Ming Simon[20] had already refashioned this minimum enhancement into a maximum.

34.Mr Shek also pointed out that the 6-step approach in Herry Jane Yusuph obliged the sentencing court to assess the role and culpability of the trafficker (at Steps 2 and 3), which might lead to an upward adjustment from the starting point; however, if the international element was to be considered (at Step 4) as justifying an enhancement under the Abdallah approach, there would be a danger of double counting in the case of the “international operator or financial controller” (as described at [67] of Herry Jane Yusuph), since the resulting notional starting point would have been enhanced twice.

35.Mr Shek did not quarrel with a sentencing policy that required harsher punishments to be imposed on those who were directly responsible for, and profited substantially from, a serious crime such as trafficking in dangerous drugs. Nevertheless, he submitted that the policy should provide for flexibility on the one hand, and predictability and consistency in sentencing practice on the other; so that, most importantly of all, punishment should be consonant with the crime committed, whilst at the same time meeting the needs of individual justice.

36.Finally, he referred to a number of recent cases dealt with in the High Court in order to demonstrate that the enhancement for lower rank traffickers tended to be modest whilst the risk of double counting became more obvious with defendants who were more involved, since the principles attending the imposition of enhancements had not hitherto been clear[21]. For these reasons, he invited the Court to lay down guidelines for enhancement, in particular for the roles of managers or organisers and for operators or financial controllers, which should also allow for adjustment in individual cases.

37.Mr Shek argued that among the categories set out in Herry Jane Yusuph, there should be no difference between an operator or financial controller (at [66]) and an organizer or controller of a large and lucrative commercial operation which transcended jurisdictional boundaries (at [67]), if the enhancement for the international element remained as a stand-alone factor under Step 4 of the Herry Jane Yusuph approach; otherwise it would result in double counting.

38.Addressing the concept of ‘international element’, Mr Shek submitted that the term was applied with too broad a brush, citing HKSAR v Ali Qasim[22], where it had been observed that the culpability of one offender who actively imported dangerous drugs into Hong Kong may differ from another who simply collected a parcel posted from abroad, which he knew to contain dangerous drugs. He contended that, instead of simply looking at the quantity of narcotic involved, the focus for enhancement for the international element should be more specifically on the role played by the trafficker in the operation, and his purpose in bringing the dangerous drugs across jurisdictional boundaries.

39.Finally, Mr Shek submitted that, as the last step in the Herry Jane Yusuph approach, sentencing courts should be encouraged to exercise their discretion in order to avoid crushing sentences in individual cases, citing a number of sentencing decisions at first instance, which purported to follow the approach of the sentencing judge in HKSAR v Cheng Man Kit[23].

E.2.  The respondent’s submissions

40.Mr Lui accepted in general terms that the Abdallah principles on enhancement of sentence should be modified so as to avoid the risk of the double counting of aggravating factors. He said that such a modification would be unlikely to open the floodgates of appeals.

41.The respondent agreed that the statement in Abdallah that a case involving more than 1 kilogramme of narcotic should attract at least 2 years enhancement for any of the four aggravating factors appeared to be unqualified. Yet, major developments over the course of the past 15 years would warrant a modification of the Abdallah principles in order to update sentencing policy in accordance with changing circumstances. This was because, firstly, the general trend of new or revised guidelines in sentencing had been to toughen sentences by uplifting earlier or older guidelines[24]. Secondly, more cases of trafficking in very large quantities of dangerous drugs had come before the courts since Abdallah was decided, resulting in very lengthy starting points in excess of 30 years’ imprisonment being regularly adopted. Thirdly, the new approach in Herry Jane Yusuph placed greater emphasis on the role and culpability of a defendant and, as a result, the quantity of dangerous drugs was no longer the only sentencing consideration.

42.Mr Lui submitted that there were four main reasons for revisiting the Abdallah principles. Firstly, the ever-increasing quantities of dangerous drugs being trafficked, thus attracting starting points beyond the 30-year cut-off point, had significantly narrowed any room there might otherwise have been to cater for the differences in roles between mere couriers and those in more senior positions in the dangerous drug hierarchy. Secondly, there was a concern that the 2 years’ imprisonment enhancement required for any of the aggravating factors identified in Abdallah was being too slavishly applied, particularly so where there were multiple aggravating features; in some cases leading to grossly inflated starting points. As had been observed, it was wrong in principle simply to add up the enhancements for each individual aggravating factor[25]. Thirdly, of the four aggravating factors listed in the supplementary guidelines in Abdallah, the senior role of an offender in trafficking activities and the engagement of a young person to assist in trafficking should more logically be taken into consideration at Steps 2 and 3 of the Herry Jane Yusuph approach, in which case they should not be considered again at Step 4; otherwise there would be a risk of double punishment. Fourthly, the Court of Appeal had declined to issue prescriptive guidelines on enhancements for other aggravating factors; for example, an offender’s status as a Form 8 recognizance holder[26], where the Court has allowed sentencing courts to retain greater flexibility in arriving at a fair and just sentence.

43.Mr Lui suggested that, should the Court be minded to revise the Abdallah principles of enhancement, the main objectives should be to ensure that the sentence is a sufficient deterrent, whilst allowing for a meaningful distinction between cases with, or without, significant aggravating features. There was always a danger of enhancements for aggravating features becoming fixed or arbitrary straitjackets; the Court might, therefore, consider a minimum enhancement or a range of enhancements to be expected, with a view to guiding sentencing judges and promoting consistency. The enhancements should, as a matter of principle, be tailored not simply to the category of offence but to the offender.

44.Mr Lui submitted that, despite the need to modify the approach to aggravating features, the factors themselves identified in Abdallah remained valid. In endeavouring to integrate them within the Herry Jane Yusuph approach, he proposed that:

(i)  So far as the international element was concerned, the focus should be on a trafficker’s knowledge that his act would result in an additional quantity of narcotics being brought into the territory for supply to others, which constituted additional harm to society. The extent of enhancement should still be by reference to the quantity of drugs involved, because such quantity was proportional to the harm caused to society. Such enhancement should be taken into consideration at Steps 2 and 3 of Herry Jane Yusuph.

(ii)  As for previous convictions for drug trafficking, it was a valid aggravating factor, which should be considered at Step 4 of the Herry Jane Yusuph approach. The extent of enhancement should be a matter of discretion for the sentencing judge, as previously indicated by the Court[27].

(iii)  The precise role of an offender should be considered at Step 2 of the Herry Jane Yusuph approach, and not visited again at Step 4, even where he might be a mastermind or senior player in a drugs syndicate. Since the precise role of an offender should be assessed in the light of case-specific facts, it did not lend itself easily to any standard enhancement.

(iv)  In respect of engaging a young person in trafficking, the power to increase the sentence for this factor was not confined to section 56A of the Dangerous Drugs Ordinance, which did not apply to offenders under 18 years of age[28]. This factor should, therefore, be considered at Step 2 of the Herry Jane Yusuph approach, since the recruitment of others is often an indication of the extent of a trafficker’s role and his involvement in the crime; while the recruitment of a minor to take part in a serious crime bears on the degree of harm occasioned by the trafficker.

(v)  As to the extent of any enhancement, it should be reasonably proportional to the basic sentence, so as not to result in an excessive sentence.

45.Finally, Mr Lui considered that a modification of the Abdallah principles on enhancement would not open the floodgates of appeals. Firstly, the aggravating factors identified by the Court in Abdallah remain valid sentencing considerations: the question was where and how they should be deployed. Secondly, any modification or clarification of the Abdallah principles would not automatically render the sentences previously passed manifestly excessive, because they would have been similar or the same under the new approach. Thirdly, as held by the Court of Final Appeal in HKSAR v Hung Chan Wa[29], a change in a previous understanding of the law did not in itself give rise to any automatic right of appeal out of time; there must be exceptional circumstances to justify the Court extending time to appeal on such a ground. Fourthly, it was well established that the Court of Appeal would only grant leave for extension of time to appeal if a proper explanation was given for the long or undue delay; and if the alleged difference in any sentence would be significant. It was submitted that very few, if any, applicants could properly overcome these stringent requirements.

F.  Discussion

F.1.  Changes to existing sentencing guidelines

46.We are grateful to the researches and submissions of Mr Shek and Mr Lui, which we have found very useful in forming our own conclusions. On the question of whether Abdallah should be reassessed in the light of modern sentencing practice and developments in this Court over the past 15 years, there has been general consensus between the parties. Where the parties perhaps differ is in the application of that reassessment to this particular case, which is undoubtedly an extremely serious example of the offence of trafficking in dangerous drugs involving over 34 kilogrammes of “Ice”, worth at the time more than HK$10.5 million, being brought into the jurisdiction from the Mainland by boat.

47.The leading modern approach to sentencing in cases of drug trafficking was set out in the Court’s decision in Herry Jane Yusuph in 2020. Given the importance of that particular appeal, the case was heard by three members of the Court rather than two, comprising the two Vice Presidents of the respective Chinese and English divisions of the Court of Appeal, sitting together with a Justice of Appeal. What resulted was a comprehensive examination of sentencing authority principally from Hong Kong but also from other common law jurisdictions stretching back more than 40 years. One of the more salient changes to emerge from Herry Jane Yusuph was a move away from the rigid arithmetical application of starting points and sentences based purely on narcotic quantity to a more discretionary approach involving an assessment of the offender’s role and culpability.

48.A reassessment and realignment of an approach to sentencing policy is not new and should not be viewed as unorthodox or heretical: the circumstances, patterns and habits of offending behaviour change over the decades, while the policy designed to deal with particular types of offence are often shaped by prevalence and experience, the shifting attitudes of society to the offence or the offender and by greater general and scientific knowledge as well as understanding of the offence itself. Such developments, and the changes they bring to sentencing policy, are more evolutionary than revolutionary.

49.In the realm of drug trafficking offences, it was said in Kilima Abubakar Abbas[30]:

“Sentencing policy is not static, but it is firm and it aims at consistency. It may be remembered that one of the first guideline cases in this area of sentencing was Chan Chi Ming v R[31] in 1979, which was concerned with what was then known as ‘No 3’ heroin. This led to a revision of the guidelines, with the advent of ‘No 4’ heroin, in R v Cheng Yeung[32] in 1989 and, ultimately, to R v Lau Tak Ming & Others[33] in 1990. The guidelines in Lau Tak Ming have stood the test of time for almost 30 years, having been adopted along the way in respect of cocaine in Attorney General v Pedro Nel Rojas[34] in 1994, and then extended for large quantities of both drugs in HKSAR v Abdallah[35] in 2009.”

50.It will be recalled that when the Lau Tak Ming guidelines replaced those of Chan Chi Ming and Cheng Yeung, the Court heralded the change by saying of Chan Chi Ming[36]:

“The conclusion which we have reached is that, after performing yeoman service, Chan Chi Ming should be retired and its guidelines replaced by those to be set out in this judgment.”

While of the guidelines in Cheng Yeung, the Court noted that the authority[37]:

“…has itself rapidly been overtaken by events and the basis for its reasoning as to guidelines has been substantially altered”.

We have, of course, long since ceased to talk of ‘No 3’ or ‘No 4’ heroin. The guidelines for heroin in Lau Tak Ming have been followed, as well as extended to include cocaine, to this day. A similar change to the approach to sentencing took place in respect of “Ice”, with the guidelines in Attorney General v Ching Kwok Hung[38] being revised and replaced by those in HKSAR v Tam Yi Chun[39]. Most recently, in HKSAR v Nguyen Thang Loi[40], the guidelines for trafficking in, and cultivation of, cannabis replaced those set out in Attorney General v Chan Chi Man[41], and later Attorney General v Tuen Shui Ming[42].

51.Consequently, there is nothing inherently wrong in revisiting and revitalising a sentencing approach to particular offences. Indeed, it is necessary to ensure that sentencing guidelines do not become irrelevant, stagnant or out of touch with changing attitudes, social conditions and advances in general and scientific knowledge.

F.2.  Six essential problems with Abdallah

52.It seems to us that several problems with the Abdallah approach have emerged since the case was decided some 15 years ago, particularly in the light of the recent decision of this Court in Herry Jane Yusuph. The first is that with the greater emphasis in Herry Jane Yusuph on identifying role and culpability when assessing the gravity of the offence and its appropriate starting point, some of the factors stipulated in Abdallah ought more naturally and rationally to be taken into account in the assessment of role and culpability rather than as separate, discrete aggravating features increasing the starting point. That is not to say they are no longer aggravating features which enhance the starting point: of course they are, but they are more logically and relevantly to be taken into account when assessing the gravity of the offending and the offender’s involvement in the offence.

53.Thus, an offender’s position in the hierarchy of a drug trafficking enterprise is obviously a matter which goes to his role in the offence and the seriousness of his culpability. The fact that an offender has brought, or conspired to bring, or facilitated the bringing of, dangerous drugs over the border into Hong Kong is and ought to be regarded and treated as part of the offender’s role and culpability rather than an additional aggravating factor susceptible of a fixed arithmetical increase of the starting point. If an offender over, or for that matter under, 18 years of age, has engaged the services of a young person to assist him in trafficking dangerous drugs, that again reflects on his role in using others and his culpability in corrupting youth to do so. These matters are more readily understood as incidents of role and culpability rather than extraneous aggravating features.

54.Secondly, if the approach in Abdallah is left to continue to run alongside the Court’s new approach in Herry Jane Yusuph, there is the danger that double counting may occur, even inadvertently or subconsciously on the part of the sentencer, particularly where the offender’s role is now to be regarded as an important element in gauging the starting point (under the Herry Jane Yusuph approach), yet his role as “a mastermind or senior player” is also to be regarded as an additional aggravating factor (under the Abdallah formula). A similar risk is exposed where the offender’s actions (as in the present case) determine not only his role as an organiser of cross-border trafficking, but also establish the international element of importing dangerous drugs into Hong Kong. Indeed, we think that the judge fell into this very trap in the present case when she increased the starting point by 2 years’ imprisonment “for the international element”[43] of dangerous drugs coming across the border, but also added a further 2 years’ imprisonment for “the significant position you held in importing a large quantity of dangerous drugs into Hong Kong”[44].

55.Thirdly, there is, we think, an illogicality and inflexibility in treating all of the aggravating factors listed in Abdallah as having the same value, justifying the same enhancement of sentence of not less than 2 years’ imprisonment once the quantity of narcotic exceeds 1 kilogramme. Yet one is not comparing like with like, or circumstance with circumstance. Moreover, the different categories of offender explained in Herry Jane Yusuph will warrant different assessments of role and culpability: from (i) couriers and storekeepers; to (ii) actual or direct traffickers; to (iii) managers or organisers; to (iv) operators or financial controllers; to (v) international operators or financial controllers. Even within those categories, there will be differentiation (sometimes overlap) between roles, as explained with the category of couriers and storekeepers in Herry Jane Yusuph (at [49]-[50]). The term “senior player” in Abdallah is, with respect, somewhat vague and capable of a number of interpretations from, for example, the manager or organiser to the international operator, yet the precise role and culpability of a defendant must surely depend on the sentencer’s assessment of the facts and circumstances of the particular case.

56.It is also somewhat illogical and inflexible to regard an “international element” as deserving of a uniform enhancement of 2 years’ imprisonment, whenever it is established in respect of an amount of narcotic over 1 kilogramme, regardless of the actual quantity. As we pointed out in Ali Qasim[45]:

“…the danger of a label such as ‘international element’ is that it can sometimes obscure the factual differences that exist between cases involving the importation (or, for that matter, exportation) of dangerous drugs. It seems to us that there is a tangible distinction, for example, between a defendant who, pursuant to the elaborate arrangements of an international syndicate, crosses continents from a foreign country and arrives at Hong Kong International Airport with dangerous drugs secreted within his baggage or person, and a defendant who goes to the Post Office on someone else’s instructions to collect a parcel posted from abroad which he knows contains dangerous drugs. The first defendant can be said to be actually importing dangerous drugs into Hong Kong, while the second defendant is generally aiding and abetting someone else’s act of importation; although, of course, the evidence may sometimes establish that he himself is the importer. Both are plainly guilty of trafficking in dangerous drugs but their culpability may differ”.

57.We went on, however, to caution that even this distinction may not be clear cut[46]:

“In distinguishing between these two types of trafficking, we are not to be taken as suggesting that the conduct of a defendant who collects a parcel containing dangerous drugs from a Post Office is necessarily any less serious or culpable than a defendant who carries drugs across the border into Hong Kong. We can envisage circumstances where someone who collects a consignment of dangerous drugs concealed in seemingly innocuous merchandise, which he has organised and made elaborate efforts to disguise and import through legitimate cargo channels, may be just as, if not more, culpable than the person who crosses the border with dangerous drugs secreted in his possession. Much will depend on the facts of the case and the extent of the involvement of the defendant. However, we would caution sentencers that simply because the label of ‘international element’ can be applied to a defendant’s trafficking of a kilogramme of heroin or cocaine narcotic because it has come across the border, and he is connected with the offence, does not automatically mean that he must receive an enhancement of sentence of 2 years’ imprisonment.”

58.Even in terms of couriers bringing dangerous drugs over the border secreted in their person or luggage, there may be a distinction, for example, between the foreigner arriving in Hong Kong for the first time from an impoverished country with a consignment of drugs, who may not, through naivety or lack of education, fully appreciate the enormity of what he is doing and the appalling consequences of the punishment that will be meted out when he is caught; and the courier from Hong Kong, who journeys across the world to collect a consignment of drugs in order to bring it back to Hong Kong, knowing full well the gravity of his crime and what awaits him when he returns. The international element, warranting a higher starting point, will apply to them both, since each will know he is unlawfully bringing dangerous drugs across the border into Hong Kong, but it is arguable that the latter type of courier may well be the more culpable.

59.On the other hand, judges should be alive to the fact that there are couriers who are not as naive or as uneducated as they may seem or claim, or whose role and actions suggest a greater proximity or connection with those higher up the chain of command, or who exercise a measure of control over other couriers during their journey over the border. As Macrae VP observed in Kilima Abubakar Abbas[47]:

“…I do not accept that such couriers do not know fully what they are doing when they ingest a large and potentially fatal consignment of dangerous drugs and/or carry it half way across the world to Hong Kong, or that they are not aware of the severity of the consequences if they are caught. As I have said, many countries in this region employ the death penalty for drug trafficking and I am not at all persuaded that traffickers are unaware of that ultimate punishment in some of the countries through which they pass, or that the offence of drug trafficking carries severe sentences of imprisonment in Hong Kong.”

Nevertheless, the point we wish to make is that the Court has, since Herry Jane Yusuph, moved away from a “one size fits all” approach on the basis that every courier is the same to a more nuanced examination by the sentencing judge of role and culpability.

60.In the same vein, it is unrealistic, as the Court in Abdallah suggested, to treat every defendant who has a prior conviction for trafficking in dangerous drugs as deserving of at least 2 years’ imprisonment if convicted of trafficking in more than 1 kilogramme of narcotic. The previous conviction may be very different in qualitative or quantitative terms, there may be one or more than one such previous conviction, it may have been recorded in a different jurisdiction of the court or it may have been relatively recent or a long time ago. As we put it in HKSAR v Har Tsz Yui[48]:

“18. Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which a judge chooses to enhance a sentence for a previous record of similar offences must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.

19. As Deputy Judge McMahon put the matter in HKSAR v Lam Kwai Wa[49], a Magistracy Appeal:

‘It seems to me that, as a matter of logic, the level of enhancement must depend on a number of factors peculiar to a particular defendant in the offence he has committed. Those factors would include primarily, firstly an assessment of the gravity of the category of offence involved and secondly an assessment of the degree of the defendant’s persistence as demonstrated by his criminal record.

Obviously the more grave the offence the greater the importance which may be attached to considerations of protection of the public by prevention of future offending by the particular defendant. The greater persistence the defendant has shown in committing the particular category of offence then the greater again the justification for enhancement of penalty so as to discourage him from future offences of that sort.

Nevertheless, in my view two things must not be lost sight of. The original starting point of sentence must be proportionate to the actual offence, and the degree of enhancement must be reasonable.’

We respectfully agree. …”

61.Since it is eminently a matter of discretion, dependent upon what may be very different facts and circumstances, we think it unwise to be too prescriptive about when and how a previous conviction for trafficking in dangerous drugs should aggravate the starting point for sentence; or whether, indeed, it should aggravate it at all. We note, for example, that in the case of Li (D2 at the original trial from which the applicant absconded), the previous trial judge decided not to enhance his starting point for a previous conviction for trafficking in dangerous drugs, which was recorded in the District Court in 2010. In Chu Ho Wa[50] (the appeal involving Chu and Li), we considered that we should not disturb the exercise of the judge’s discretion in this regard (a point which was specifically adverted to in the General Editor’s Note to the report in the Hong Kong Law Report and Digest[51]).

62.We shall return later to consider whether this aspect of Abdallah, namely, a previous conviction for trafficking in dangerous drugs, is part of the defendant’s role and culpability under Herry Jane Yusuph, or whether, as Mr Lui has suggested, it should remain a free-standing aggravating factor, which might more naturally go to the enhancement of the starting point for sentence.

63.Our fourth concern springs from the prescription of not less than 2 years’ imprisonment for any of the aggravating factors identified in Abdallah. In Yeung Lee Ming Simon, Yeung VP conducted a review of a number of cases of cross-border trafficking since Abdallah, and found that “the range of enhancement for a cross-border element in serious cases of drug trafficking generally would not exceed 2 years”[52]. The Court went on effectively to reinterpret the not less than 2 years’ imprisonment laid down in Abdallah as not more than 2 years’ imprisonment. The Court’s reasoning was as follows[53]:

“We cannot disregard the fact that the element of a large quantity of drugs involved in a case of drug trafficking has made a defendant face an extremely long term of imprisonment. If the same element is used again to increase substantially the level of enhancement for cross-border offending, the defendant will face double punishment because of the same element. We are of the view that in serious cases of drug trafficking, the range of enhancement for a cross-border element should stop at 2 years.”

64.It can be seen, therefore, that in one important respect (the first aggravating factor cited in Abdallah), what was said by the Court in Abdallah has already been revisited and reconsidered by a later division of this Court[54]. To our knowledge, Yeung Lee Ming Simon has since been followed by sentencing courts as a sensible brake on otherwise very lengthy sentences. In this connection, it is also worth referring to the comments of Cheung JA, when addressing another aggravating factor cited in Abdallah, namely that of using a young person to traffick in dangerous drugs (the fourth aggravating factor cited in Abdallah), in HKSAR v Ng Hon Keung[55]:

“Anyone who deals with dangerous drugs will have to bear the consequence of receiving an enhanced sentence if a minor is involved in the offence. It will not be helpful to suggest any figure of increase as the degree of enhancement will depend on the context of the case. Where the original sentence, like the present one, is already a lengthy one, a sense of proportion must be considered. To simply apply a percentage figure may result in an excessive total sentence. In our view the three years and four months’ increase adopted by the Judge is too high.”

65.Our fifth concern with the supplementary guidelines in Abdallah is that sentences in Hong Kong for trafficking in large quantities of dangerous drugs are already very severe; and, as Mr Lui has pointed out, the trend over the years has generally been to increase guideline sentences in this sphere of the criminal law rather than reduce them. For example, the 1998 guidelines for ketamine and ecstasy in HKSAR v Lee Tak Kwan[56] were revised in 2008 in Secretary for Justice v Hii Siew Cheng[57]. More recently, and since Abdallah was decided, the 1991 guidelines for “Ice” in Ching Kwok Hung were revised in 2014 in Tam Yi Chun, while the 1995 guidelines for cannabis in Tuen Shui Ming were revised in 2023 in Nguyen Thang Loi. Furthermore, the Courts have extended existing guidelines for large quantities on a number of occasions. The Court in Abdallah itself extended the Lau Tak Ming guidelines for heroin and cocaine; while HKSAR v Chan Ka Yiu extended the Hii Siew Cheng guidelines for ecstasy and ketamine.

66.With such high sentences, and the extension of the ranges of sentence, the room for manoeuvre of courts sentencing in respect of very large quantities of dangerous drugs, and the ability to distinguish between those who are mere couriers or storekeepers and those who are much more involved in the organisation of a drug trafficking enterprise, becomes more and more limited and restricted. This concern has been voiced on a number of occasions by this Court since Abdallah was decided: for example, in HKSAR v Leung Wai Man[58]; in Kilima Abubakar Abbas[59]; and in HKSAR v Godson Ugochukwu Okoro[60]. Indeed, it seemed to be acknowledged by the Court in Abdallah itself[61]:

“37. An important consideration in our thinking has been that the courts should have sufficient flexibility to deal with cases where even larger quantities of heroin are trafficked than that in the present case. …

38. We have in mind, therefore, not merely as a theoretical possibility but as a matter of practical reality, that room must be left for heroin trafficking sentences which fall into the highest range.”

However, with respect, it is not simply a matter of ever-increasing quantities of dangerous drugs coming before the courts. Rather, as McWalters JA put the concern in Kilima Abubakar Abbas:[62]

“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.”

67.Mr Lui has produced for us a table of cases heard since Abdallah was decided in March 2009, in which very large quantities of “Ice”, heroin or cocaine[63], and quantities greater, sometimes significantly greater, than the one with which we are concerned, have been the subject of prosecution. As at 2 August 2023, there were 13 such cases of larger quantities than the one with which we are concerned, the largest of which involved more than 422 kilogrammes of cocaine; the second largest, 232 kilogrammes of cocaine. The earlier case of Ng Muk Kam, referred to supra[64], involved 306 kilogrammes of heroin narcotic. The concerns expressed by various members of the Court, therefore, over the past 15 years are real and certainly not theoretical.

68.However, the sixth and perhaps fundamental problem with the Abdallah approach is that the Court in Herry Jane Yusuph has shifted, however slightly in practical terms, from the prescriptive application of defined sentences based on arithmetic alone to allow for a greater element of discretion on the part of sentencing judges. Nevertheless, we should make clear that quantity must remain the primary determinant in sentencing for trafficking in dangerous drugs. As we said in Herry Jane Yusuph[65], and we repeat:

“… the first step when approaching sentence for an offence of trafficking in dangerous drugs is for the judge to identify the relevant guideline band (or bracket) applicable to the quantity of drug concerned”.

That is because one of the paramount considerations in this branch of the law is the need for predictability and consistency in sentencing. For that reason, personal circumstances pale into relative insignificance when seen against the gravity of these particular crimes. Yet, despite what we acknowledge is limited room for manoeuvre by sentencing judges in this area of criminal sentencing, the Court in Herry Jane Yusuph made clear[66]:

“Nevertheless, the court must still retain an important element of discretion in sentencing for such offences and, as we have said, consistent sentencing does not mean identical sentencing.”

F.3.  The Herry Jane Yusuph approach to the Abdallah aggravating factors

69.It is for these reasons, and after consulting with all other criminal judges of the two divisions of the Court of Appeal, that we think the approach in Abdallah, as set out in the Court’s supplementary guidelines, must now be reconsidered and re-evaluated in the light of the Court’s recent approach in Herry Jane Yusuph. Whilst the ranges of sentence set out at [41] of Abdallah in respect of quantities exceeding 600 grammes of heroin or cocaine will remain unaltered, the rest of the judgment, albeit useful as a historical analysis of previous cases and their principles, must now yield to the approach set out in Herry Jane Yusuph.

70.Each of the three examples at [42] of Abdallah of what were described as “an aggravating factor calling for the enhancement of the starting point”, namely where:

“(1) An international element is involved;

….

(3) The trafficker is shown to be a mastermind or senior player, such as a financier, in a syndicate; or

(4) The offender is shown to have engaged a young person to assist in the trafficking”,

are, in the ordinary course, now to be regarded as matters going to the role and culpability of the offender when identifying the starting point, rather than as separate and additional aggravating features. We think the one exception is where:

“(2) The trafficker has previously been convicted of trafficking in dangerous drugs”,

which is plainly a matter relating to the particular offender that calls for an enhancement of sentence within the exercise of the sentencing judge’s discretion. Although it could conceivably be argued that such a factor reflects on the offender’s culpability, the argument is somewhat strained and it is better understood as a separate factor, which is capable of aggravating the sentence of an offender who has not learned his lesson and repeated the offence, thus requiring a significant element of personal and public deterrence. That said, there is no warrant for any specific, prescribed numerical enhancement for this factor: this is a matter that should properly be left to the discretion of the individual sentencing judge based on the circumstances of the offence and the offender.

71.To this discrete factor, we would add the offender’s status as a Form 8 recognizance holder. The fact that a trafficker in dangerous drugs is a non-refoulement claimant in possession of a Form 8 recognizance is typically a matter that relates to the person of the offender and goes to enhance his sentence, on principles well established in the case law. In this regard, we have already declined to devise specific numerical guidelines[67]: all cases will be different.

72.Furthermore, and apart from these two factors, there may well be others going to the enhancement of sentence in drug trafficking cases, which do not strictly attach to the role and culpability of the offender. These will be matters for the sentencing court to consider in the ordinary way.

73.It follows from what we have said that the approach in Chung Ping Kun, which endeavoured to cater for quantities less than 1 kilogramme where there was an international element involved, and which was the Court’s attempt to remedy what was seen as a lacuna in the Abdallah supplementary guidelines should also now give way to the Herry Jane Yusuph approach and no longer be applied. Similarly, in Chan Ka Yiu, the Court’s attempt to provide guidelines at [24] in respect of the international element for trafficking in ketamine, should now be re-evaluated in conformity with the later approach of the Court in Herry Jane Yusuph and what we have said in this judgment.

74.We must reiterate that the international element should now generally be considered as a factor when assessing the role and culpability of the offender in order to identify the appropriate starting point for sentence. In exercising their discretion, courts will still bear in mind the quantity of narcotic being introduced into Hong Kong, which not only increases the supply of the particular dangerous drug but causes greater harm to the community. As Zervos JA put the matter in HKSAR v Fong Yau Heung[68]:

“The courts in Hong Kong have long recognised that the importation of dangerous drugs is a serious aggravation of the offence of drug trafficking because it involves the international smuggling of the quantity of drugs imported finding its way into the local drug market and putting the people and the community at risk of substantial harm.”

Later, he repeated[69]:

“It is clear from our review of the authorities, that the importing or exporting of drugs is regarded more seriously than the usual dealing of drugs locally. Importing drugs into Hong Kong fuels the local drug market and has serious and deleterious consequences to the people and the community of Hong Kong. Exporting drugs from Hong Kong has the same effect on the receiving jurisdiction which is regarded with the same level of seriousness as if imported in accordance with international comity.”

F.4.  A caveat

75.We should, however, add this caveat. There may be cases where a judge considers that such is the seriousness or significance of the factor in aggravation of the offence that it should remain and be addressed as a specific aggravating feature going to enhance the starting point under Step 4 of the approach in Herry Jane Yusuph. We would not want to exclude such an approach in appropriate cases by sentencing courts. In the recent case of HKSAR v Leung King Hung[70], for example, the applicant was an adult who was described by the trial judge[71] in her sentencing remarks as part of a syndicate, which recruited and used minors, aged 13 and 15 years of age, to traffick in dangerous drugs locally so as to do their “dirty business” for them. Obviously, there were a number of aggravating features bearing on the eventual sentence, but the trial judge considered that the exploitation of minors in this case called for specific treatment as an aggravating factor. Zervos JA in his leave judgment found that it was not reasonably arguable to impugn such a course. He held[72]:

“I do not agree that the judge took into account the exploitation of minors as both an aggravating factor and an element of the criminality involved… Depending on an overall assessment of the criminality involved and the circumstances of the case, an enhancement for the aggravating factor of involving a minor in a crime should be substantial in order to be an effective deterrent and an appropriate reflection of the community’s opprobrium.”

76.The important thing, as Zervos JA recognised, is that a judge explains how the sentence is reached, so that there is no risk of double counting occurring. In another recent case where a trial judge[73] had specifically departed from the Court’s advice in HKSAR v Chow Yuen Fai[74], which was that the sentence for making child pornography should be made to run concurrently with an offence of indecent conduct towards a child under 16, where the maker of the pornography is himself the perpetrator of the offence being filmed, so as to avoid the problem of double counting, the Court said:[75]

“[T]his cannot be an inflexible rule and must depend on the circumstances of individual cases; as this case perhaps illustrates. Here, the making of the child pornography had a number of apparent motives or purposes, according to the evidence: firstly, for the applicant’s own sexual gratification; secondly, to ensure that X kept quiet and did not report the matter to anyone; and, thirdly, so that he could sell the videos and profit from X’s misery. The judge distinguished the approach in Chow Yuen Fai and expressly stated that he had ‘not taken your filming of the girl into account when deciding on the sentence for the offence of indecent conduct towards a girl under 16’. In those circumstances, the judge was clearly alive to the problem of double counting and entitled to pass a consecutive sentence in respect of a particularly unpleasant manifestation of the offence, the maximum sentence on indictment for which is 8 years’ imprisonment and a fine of HK$2 million. The sale of home‑made pornography showing terrified young children being tormented and abused is something which the courts must treat with particular severity.”

77.Again, albeit that the illustration may not be entirely apt since it derives from a wholly different offence, the point is that sometimes the aggravating factor is so egregious and important to the criminality involved that a judge is perfectly entitled to single it out and explain why he or she is enhancing the sentence for this particular factor. We would not wish to prevent judges doing so in a particular case, provided the judge acknowledges the danger of double counting. Nor do we think there can be a limit to the enhancement in such circumstances, provided the judge has regard to totality and the ultimate sentence is not out of proportion to the criminality involved.

78.However, we consider that the first, third and fourth aggravating factors in the supplementary guidelines in Abdallah would normally go to an assessment of the gravity of the offence and the offender’s role and culpability in that offence. The second aggravating factor is, however, always to be regarded as a separate and distinct aggravating feature and its significance determined by the judge in the exercise of his discretion.

F.5.  Three further matters (in the application of Herry Jane Yusuph)

79.We should for the sake of completeness deal with three other matters, which have emerged during an examination of the arguments and issues addressed in this appeal.

F.5.1.  Further sentencing guidelines unnecessary

80.The first matter concerns the invitation to the Court to lay down yet further guidelines in respect of quantities of heroin or cocaine beyond 15 kilogrammes; as well as guidelines for enhancements for the different roles of traffickers. We do not accede to either invitation.

81.In our judgment, it is not appropriate to issue further guidelines for quantities of dangerous drugs above 15 kilogrammes; the approach we have indicated in this judgment should be sufficient to guide judges as to the use and exercise of their discretions where very large, or even vast, quantities are concerned. As for guidelines for the different roles played by traffickers, we identified the most common classifications of such roles in Herry Jane Yusuph but added this important observation, which should answer the second invitation[76]:

“We emphasise that these are the most common categories of trafficker likely to be encountered in practice by the courts in Hong Kong. It may be that there are some forms of trafficking which do not fit neatly or precisely into a particular category, or, indeed, others where the functions overlap to a greater or lesser extent. Where a defendant’s role and culpability fall in determining the starting point must be a matter for the sentencing judge based on the evidence before the court.”

How a court assesses the role and culpability of a particular defendant is a matter for the sentencing judge, based on the evidence adduced before the court.

F.5.2.  Multiple aggravating factors and the application of totality

82.The second matter concerns the situation where there are a multiplicity of aggravating factors. If the approach in Herry Jane Yusuph is followed and the supplementary guidelines in Abdallah are no longer applied, we think there is less likelihood of judges simply (or “slavishly”, to use Mr Lui’s word) adding up aggravating factors and their prescribed increases leading to an excessive starting point, which occurred in Ali Qasim. Indeed, we think that the same thing happened in the present case. As Zervos JA put the matter in HKSAR v Islam Azharul[77]:

“Having specified the enhancements given for the aggravating factors, it is important for the sentencing court to ensure that the aggregation of the enhancements does not result in an oppressive and overloaded sentence, and by the application of the totality principle this will require determining an appropriate effective total of the enhancements.”

The same judge reiterated the point in HKSAR v So Yat Ting[78]:

“As noted in HKSAR v Islam Azharul, it would be wrong in principle merely to add up the individual enhancements for a series of aggravating factors without applying the totality principle when that is appropriate. It is not simply a matter of addition.”

F.5.3.  “Crushing” sentences and Step 6 of Herry Jane Yusuph

83.That leads us to the third matter, which is derived from Mr Shek’s point, in reliance on certain first instance sentencing decisions, that the courts should somehow use the last Step 6 in Herry Jane Yusuph to reduce the sentence if they think it will be an overbearing or crushing one. The provenance of this submission is said to be a sentence passed by Deputy Judge McWalters in Cheng Man Kit, where he said of the Herry Jane Yusuph approach:

“The sixth step is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender. This may be more relevant to cases involving multiple offences, but in my view, the Court of Appeal was not limiting the sixth step to such cases. The concept of totality ensures that the final sentence is not a crushing sentence but, as I have said, one that is fair, balanced and, ultimately, just.

……

I am satisfied that in these circumstances, the final sentence will not be a just sentence but will rather be a crushing one. What this defendant needs is not just punishment but, equally importantly, encouragement to pursue the path of rehabilitation and to believe that if he does so, society will give him a chance. I believe that these considerations justify me exercising my sentencing discretion to reduce the final sentence to one of 18 years’ imprisonment, and that is the sentence that I impose on this defendant.”

In fact, we are informed by the respondent that Cheng Man Kit was the last in a line of 10 cases at first instance, in which the same interpretation of Step 6 of Herry Jane Yusuph had been adopted.

84.With respect, however, this was not a correct understanding and interpretation of Step 6 of Herry Jane Yusuph. The particular passage to which the deputy judge was referring, falls under the separate heading of ‘Totality’ and is specifically directed at the danger of arriving at an inflated starting point by means of multiple counts or multiple aggravating factors. The Court said[79]:

“Totality

79. The sixth, and final, stage of the sentencing process is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. Where there is more than one count or charge involved, or more than one aggravating feature justifying enhancement of the starting point, the sentencing judge must be careful that the ultimate sentence is not out of proportion to the defendant’s overall criminality…”

85.It will be seen that the Court in Herry Jane Yusuph was not advocating some form of unprincipled, final reduction whenever a sentencing judge feels the sentence might be an overbearing or crushing one for the defendant concerned: it was warning of the danger of adding up the sentences for multiple counts or multiple aggravating factors leading to an inflated overall starting point out of proportion to the defendant’s criminality. The context of Step 6 was ‘totality’, where more than one count is involved, or more than one aggravating feature is engaged. Many sentences of far shorter length may be considered overbearing or crushing for certain defendants, but that is not a reason to reduce a sentence otherwise dictated by the sentencing guidelines. If that were the case, it would promote inconsistency and unnecessary and unhelpful comparisons between sentences by defendants and appellants in drug trafficking cases. As observed by Doyle CJ in the Supreme Court of South Australia decision in R v E, AD[80]:

“Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.”

86.As we have noted, the flawed approach in Cheng Man Kit has been applied in a number of other sentencing decisions, and followed by other judges at first instance[81]. We must state clearly that the sentencing gloss in Cheng Man Kit in construing Step 6 of Herry Jane Yusuph is not correct and should not be followed. This extends to the other cases that have taken the same approach.

F.6.  A more prescriptive approach to sentence rather than opening the floodgates of appeals

87.Finally, we should say that we do not see a danger that our decision will open the floodgates of appeals in this area, simply because we have departed from the more prescriptive approach in the supplementary guidelines set out in Abdallah, very much for the reasons explained by Mr Lui[82]. In practical terms, we are requiring by this judgment that those aggravating features applicable be considered in less prescriptive terms when assessing the role and culpability of the offender rather than as separate, discrete factors going to enhance the starting point by defined increments. Other aggravating features, such as a relevant previous conviction for trafficking in dangerous drugs, or the offender’s status as a Form 8 recognizance holder, do not go to role and culpability and can be applied in the usual way. In reality, our clarification does not mean that the supplementary factors in Abdallah are no longer aggravating features. It just means that they will be applied in a more logical, rational way to the sentencing process.

G.  Applications of the above principles to the present case

88.We turn now to the application of these principles to the present case.

G.1.  The role and culpability of the applicant on Count 1

89.In Chu Ho Wa, we characterised the role of the applicant (who was D4 at the original trial) in this enterprise as follows[83]:

“The evidence suggested that not only was D4 the organiser of the drug trafficking operation, his organisation of that operation transcended international boundaries. By contrast, D1 and D2 were effectively transportation workers, hired to collect the drugs from Repulse Bay and drive them to Yau Ma Tei in Kowloon. In their case, the Judge specifically found that ‘neither … actually knew where the drugs were coming from when they agreed to take part’.”

We think this remains an apt description and a valid differentiation between the applicant and his co-defendants. We also noted a slight distinction in the roles of Chu and Li, for which we adopted different starting points of 30½ years’ for Chu, and 31 years’ imprisonment for Li.

90.The applicant was clearly the organiser of this operation and knew that the dangerous drugs were coming across the sea to Hong Kong illegally from Shenzhen on the Mainland. Given his position and the international element involved, his role and culpability are plainly more serious than those of Chu and Li. If we adopt a base starting point of 31 years’ imprisonment for the quantity of “Ice” concerned, we would then have to reflect the applicant’s role and the international element when considering the gravity of the offence. Applying the approach set out in Herry Jane Yusuph, and mindful of totality in what is an already very lengthy sentence, we would assess the appropriate notional sentence after trial for the applicant at 33 years’ imprisonment. There was, and is, no discernible mitigation.

G.2.  The sentence on Count 2

91.The judge further adopted a starting point of 6 months’ imprisonment in respect of Count 2, which she reduced because of the applicant’s guilty plea to 4 months’ imprisonment. She then ordered the 4 months’ imprisonment to run consecutively to the sentence of 37 years’ imprisonment on Count 1, making a total sentence of 37 years and 4 months’ imprisonment.

92.Having reduced the sentence on Count 1 from 37 years’ to 33 years’ imprisonment, we must now consider whether to leave the 4 months’ imprisonment on Count 2 to run consecutively to the principal sentence, or make some other order. Whilst we think the two sentences are separate and distinct matters, and would ordinarily be entirely justified in being ordered to run wholly consecutively, the applicant having brought Count 2 upon his own head when he resolved to abscond, the fact remains that the sentence of 33 years’ imprisonment is a very long sentence indeed. Given such a lengthy sentence, we wonder whether there is any utility in ordering the two sentences to run consecutively. If the applicant earns full remission of his sentence on Count 1, he will still serve 22 years in custody and emerge from prison sometime in his 60’s towards the end of his working life. To be required to serve another 10 weeks (again assuming full remission) for Count 2 does not seem to us to serve any useful purpose, when the sentence is already so long. We also note that although the applicant absconded from the trial, he was apprehended 7 months later near his home, and still within the jurisdiction, whereupon he was simply brought back before the court[84].

H.  Conclusion and disposal

93.For these reasons, we dismissed the application for leave to appeal against conviction upon its withdrawal and granted the application to treat the abandonment (of the sentencing appeal) as a nullity. We also grant leave to appeal against sentence and allow the appeal.

94.We shall order the sentence on Count 2 to run wholly concurrently with the sentence on Count 1. Accordingly, the overall sentence to be served by the applicant will be one of 33 years’ imprisonment. The original sentence of 37 years and 4 months’ imprisonment is thereby set aside and replaced with a term of 33 years.

I.  Postscript

95.We hope it will be clear that this judgment complements what the Court has said in Herry Jane Yusuph, and should be read in conjunction with it.

Mr Ira Lui ADPP and Mr Herman Wan PP (on 2 August 2023 only), of the Department of Justice, for the Respondent

Mr Randy Shek, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid, for the Applicant