Read the full judgment text of CACC 106/2022 on BabelCite. This Court of Appeal judgment was delivered on 5 March 2025 before Macrae Acting CJHC, Zervos JA, M Poon JA.
Criminal law – sentencing – trafficking in dangerous drugs – Dangerous Drugs Ordinance, Cap 134, s.4(1)(a) and (3) – cocaine – heroin – methamphetamine hydrochloride ("Ice") – quantity-based sentencing guidelines – reconsideration of Abdallah guidelines – Lau Tak-ming guidelines – Tam Yi Chun guidelines – application of Lau Tak-ming to cocaine – revision of guidelines for all three drugs – gradual sentencing curve – tapering or plateauing effect at higher quantities – practical 35-year ceiling – Sum Ka Wa – room for manoeuvre – Herry Jane Yusuph approach – Step 5 and Step 6 – role and culpability – aggravating factors – international element – courier – reduction for delay and stress of two trials and protracted proceedings – foreign defendant – leave to appeal out of time – applicant, a Brazilian permanent resident, trafficked 4,770 grammes of liquid cocaine disguised as Acai juice in nine sealed cans from São Paulo via Johannesburg, with street value of HK$3,830,310 – first conviction quashed on appeal in 2022 – retrial conviction in 2022 sentenced to 27 years and 10 months' imprisonment – Court of Appeal's own invitation to reconsider the Abdallah guidelines – new eight-band guidelines issued for heroin and cocaine ranging from 2-5 years for up to 10 grammes to 27-30 years for 15,000-30,000 grammes, with judicial discretion above 30,000 grammes subject to 35-year practical ceiling and life imprisonment maximum – revised parallel guidelines for Ice retaining heavier lower-band starting points (e.g. 3-7 years for up to 10 grammes) before converging with heroin/cocaine bands at 1,500 grammes and above – replacement of Lau Tak-ming, Abdallah and Tam Yi Chun bands – starting point of 25½ years for applicant's role and culpability, reduced by 6 months for trial/appeal stress – final sentence 25 years' imprisonment – appeal against sentence allowed – leave to appeal out of time granted
Legal issues: Reconsideration and revision of the Abdallah sentencing guidelines for heroin and cocaine trafficking · Reconsideration of the Tam Yi Chun sentencing guidelines for trafficking in methamphetamine hydrochloride (Ice) · Whether to grant the applicant leave to appeal against sentence out of time · Application of the new guidelines to the applicant's sentence and assessment of the appropriate discount for trial/appeal stress
Outcome: Appeal allowed; sentence reduced from 27 years and 10 months' imprisonment to 25 years' imprisonment
Cited by 2 cases · Cites 25 cases