Criminal sentencing — dangerous drugs — trafficking — 107 g cocaine — sentencing guidelines — not unconstitutional for amounting to arbitrary imprisonment — failure to give defendant discount for assisting authorities offset by omission to enhance sentence by reason of his status as Form 8 recognizance holder — Basic Law art. 28 — Hong Kong Bill of Rights Ordinance (Cap. 383) s. 8 art. 5(1)
Stopped and searched by the police while walking along Nathan Road, the appellant (“D”) was found to be carrying dangerous drugs consisting of 107 g of cocaine in which he was trafficking as a courier. He pleaded guilty to trafficking in those drugs. The Deputy Judge sentenced him to six years and four months’ imprisonment. D appealed against sentence on two grounds. The first ground was that he should have been afforded a discount of sentence for the assistance which he had rendered the authorities by providing them with information. And the second ground of appeal was that the sentencing guidelines for drug trafficking unduly restricted the ability of the courts to vary sentences for the role and circumstances of individual defendants, and in the case of drug couriers, such as he, impose mandatory minimum sentences which were manifestly disproportionate to the criminality involved, and thus arbitrary, and in violation of art. 5(1) of the Hong Kong Bill of Rights and art. 28 of the Basic Law.
Held, allowing the appeal by sentencing D afresh and arriving by a different route at the same sentence as the Deputy Judge had passed, that:
1) Contrary to D’s submission, the sentencing guidelines did not unduly restrict the ability of the courts to vary sentences for the role and circumstances of individual offenders who were couriers. The guidelines were not fixed or compulsory. A sentencing court could depart from the guidelines when the circumstances warranted it (R v Millberry  1 WLR 546, HKSAR v Leung Pui Shan (CACC 317/2007,  4 HKLRD I4) applied; R v Lau Tak Ming  2 HKLR 370, HKSAR v Abdallah  2 HKLRD 437 considered). (See paras. 90–94.)
2) Also, contrary to D’s submission, the guidelines were not disproportionate to the criminality involved. They were specifically directed to a courier or storekeeper. While providing important principles and guidance, they retained the flexibility of being capable of being departed from for good reason. They were not arbitrary and did not violate art. 5(1) of the Hong Kong Bill of Rights or art. 28 of the Basic Law (R v Lau Tak Ming 2 HKLR 370, HKSAR v Abdallah  2 HKLRD 437, HKSAR v Kilima Abubakar Abbas  5 HKLRD 88 applied). (See paras. 95-97.)
3) Accordingly, the constitutional challenge to the guidelines failed (Lau Cheong and Another v HKSAR (2002) 5 HKCFAR 415 applied). (See paras. 54-61, 98.)
4) D should have received a discount for the assistance that he had provided to the authorities, but the reduction of six months which he should have received for such assistance was offset by the six months by which his sentence should have been enhanced by reason of his Form 8 holder status (HKSAR v Shah Syed Arif  4 HKLRD 664, HKSAR v Lo Sze Tung Stephanie (CACC 190/2017,  HKEC 2043 applied). (See paras. 21–29, 100–101.)
Appeal against sentence
This was an appeal against sentence for trafficking in a dangerous drug imposed by Deputy Judge Campbell-Moffat SC (see  HKEC 1343). The facts are set out in the judgment.
Editorial note: The nature of sentencing guidelines and how they come about were explained by the Court of Final Appeal in Seabrook v HKSAR (1999) 2 HKCFAR 184.