Read the full judgment text of CAAR 11/2010 on BabelCite. This Court of Appeal judgment was delivered on 28 April 2011 before Cheung JA, Yeung JA, Chu J.
Criminal law – sentencing – trafficking in dangerous drugs – Dangerous Drugs Ordinance (Cap. 134) ss.2 and 4(1)(a) and (3) – methamphetamine hydrochloride (Ice) – 12.85 grammes – exportation from Hong Kong to Macau – guilty plea – drugs accepted as for personal consumption – whether sentencing judge should start from possession tariff and enhance for exportation or start from trafficking tariff and discount for personal consumption – application for review of sentence by Secretary for Justice – sentence alleged to be wrong in principle and manifestly inadequate. The defendant was intercepted at the Hong Kong ferry terminal carrying 12.85 grammes of Ice in a shoulder bag. The prosecution accepted the drugs were for his own consumption. The sentencing judge used a starting point of 18 months (the customary sentence for simple possession), increased it by 9 months to reflect exportation (reaching 27 months), then reduced it by one-third for the guilty plea, arriving at 18 months' imprisonment. The Court of Appeal held this approach was wrong in principle: the defendant was charged with trafficking, a more serious offence than simple possession, and personal consumption is a matter of mitigation rather than a basis to redefine the nature of the offence. The court relied on Attorney General v. Lau Chi-sing [1987] HKLR 703 for the proposition that taking drugs out of Hong Kong for personal consumption still constitutes trafficking, and on HKSAR v. Abdallah Anwar Abbas [2009] 2 HKLRD 437 for the view that importing and exporting drugs represents the most serious form of trafficking. The court further held that, in a case such as the present, a discount of approximately 25% from a notional trafficking starting point is a correct and workable approach to reflect personal consumption as mitigation. The application for review was allowed, the original sentence of 18 months was set aside, and a sentence of 3 years and 6 months' imprisonment was imposed. Notional starting point based on trafficking tariff, adjusted downwards by approximately 25% to reflect personal consumption, with further one-third reduction for guilty plea, yielding final sentence of 3 years and 6 months' imprisonment.
Legal issues: Whether sentencing for trafficking by export should start from a possession-based sentence and be enhanced for exportation · Appropriate sentence for trafficking 12.85g of Ice intended for personal consumption after guilty plea
Outcome: Application for review allowed; original sentence of 18 months' imprisonment set aside and replaced with 3 years and 6 months' imprisonment.
Cited by 8 cases · Cites 2 cases