HKSAR v Kilima Abubakar Abbas

HKSAR v Kilima Abubakar Abbas
[2018] 5 HKLRD 88Court of Appeal
Criminal Appeal No 143 of 2016
Lunn and Macrae V-PP and McWalters JA
18 September 2018

Criminal sentencing - dangerous drugs - trafficking - mitigating factors - whether being courier by itself warranted reduction in sentence - whether sentencing guidelines for drug offences issued in England and Wales to be followed in Hong Kong - assistance by defendant to authorities and participation in Father Wotherspoon's anti-drug campaign - approach to discount in sentence

Criminal sentencing - discount and mitigation - assistance to authorities - meaning of assistance "of practical use"

D, a Tanzanian national, pleaded guilty to unlawfully trafficking in dangerous drugs, namely 718 g of cocaine, into Hong Kong. The Judge took a starting point of 21 years' imprisonment, which he enhanced by one year's imprisonment to reflect the international element of the offence, and gave a one-third discount from the enhanced starting point to reflect the plea. D sought leave to appeal against the sentence of 13 years and 8 months' imprisonment, arguing that: (a) the Judge had erred in sentencing him on the basis that he had trafficked unlawfully in 780 g instead of 718 g of cocaine; (b) the sentence was wrong in principle because it ought to have been reduced by reason of his role as a courier, and the law as laid down in HKSAR v Leung Kwai Ping (No 2) [2003] 2 HKC 575, and subsequent cases concerning the role of couriers in drug trafficking, was wrong or ought not to be followed; and (c) the Court ought to consider D's personal circumstances and post-arrest conduct including his attempt to assist the authorities and his participation in Father Wotherspoon's campaign.

Held, granting the application for leave to appeal against sentence but dismissing the appeal by a majority (McWalters JA dissenting as to sentence), that: (Per Lunn and Macrae V-PP, McWalters JA agreeing)

Weight of drugs

  • The Judge had obviously erred in sentencing D based on his trafficking in 780 g instead of 718 g of cocaine. The arithmetically calculated starting point for sentencing ought to have been 20 years and 7 months, and the enhancement of sentence to reflect the international element ought to have been 1 year and 5 months. Notwithstanding the Judge's errors in calculating the enhanced starting point for sentence, he was correct in stipulating it to be 22 years' imprisonment. (See paras.55, 93, 143.)

Role as courier

  • The effect of the tariffs stipulated in R v Lau Tak Ming [1990] 2 HKLR 370, which had been adopted in respect of cocaine in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and extended for large quantities of both heroin and cocaine in HKSAR v Abdallah[2009] 2 HKLRD 437, was that the tariffs were set for a defendant who was involved at the lowest level, namely as a courier or storekeeper. No regard was to be had to distinctions in the role of a courier or a storekeeper as a factor in mitigation reducing the tariff sentence. A courier whose commission of the offence involved factors of aggravation, including those identified in HKSAR v Abdallah, was liable to have the sentence arrived at by application of the tariff enhanced (HKSAR v Abdallah [2009] 2 HKLRD 437 followed; R v Lau Tak Ming [1990] 2 HKLR 370, R v Leung Kim Wah (CACC 442/1992, 6 July 1993), HKSAR v Manalo [2001] 1 HKLRD 557, HKSAR v Leung Kwai Ping (No 2) [2003] 2 HKC 575 applied). (See paras.46, 73, 144-146.)
     
  • By successive judgments of this Court over the years, it was plain that the Court had intended the tariffs set out in R v Lau Tak Mingto apply to a courier or storekeeper. Unlike the development of a stepped approach in England and Wales, which required the sentencing judge to determine the offender's culpability and the harm caused by reference to a series of tables, the guidelines in this jurisdiction were based on the quantity of the dangerous drug concerned, and were intended to apply to those least involved in the hierarchy of trafficking (R v Lau Tak Ming [1990] 2 HKLR 370 applied). (See paras.54, 73-76, 147-148.)
     
  • (Per McWalters JA) (Obiter ) Whilst it was clear that on the present state of the law, the tariffs were applicable to a courier or storekeeper, it was a matter of concern that the current sentencing regime for drug trafficking, as reflected by the upward revision of the guidelines in Abdallah, might not enable courts to adequately distinguish the culpability of the courier from that of the organiser (HKSAR v Abdallah [2009] 2 HKLRD 437 considered.) (See paras.45, 144-148.)
     
  • (Per McWalters JA) The sentencing principles applicable to joint enterprise crimes provided the correct legal rationale for not usually distinguishing between those involved in drug trafficking by reason of the particular role they played. However, there should be room for the exercise of sentencing discretion - limited to how the offender came to be involved in the offence and what he did in furtherance of it - to impose a more individualised sentence in appropriate circumstances. (See paras.165-171.)

(Per Lunn V-P)

Provision of information to authorities and participation in a programme to discourage drug trafficking

  • (McWalters JA agreeing) The appropriate mechanism by which D's assistance to the authorities ought to have been reflected in sentencing was by way of a total sentencing discount of 36.5% including his plea of guilty. This would reduce the starting point to 13 years and 11 months' imprisonment. (See paras.63, 212.)
     
  • (Per Macrae V-P) Whether a discount in sentence should be awarded for information or assistance given by a defendant to the authorities depended on whether the assistance was "of practical use". The term "of practical use" clearly encompassed the type of information which "could potentially assist or had actually assisted the authorities", as described by the Court of Final Appeal in Z v HKSAR (Z v HKSAR (2007) 10 HKCFAR 183 at [13] applied). (See paras.77, 81.)
     
  • (Per Macrae V-P) If the authority concerned formed the view that the information was of no actual or potential assistance, then, unless the papers clearly suggested otherwise, that should normally be the end of the matter. It was not for the courts to embark on an enquiry as to the cogency and validity of that decision. (See para.85.)
     
  • (Macrae V-P agreeing) Although the Executive was better placed to evaluate the value of a defendant's participation in Father Wotherspoon's campaign, it lay within the judge's discretion to afford a small additional sentencing discount. The Judge was entitled to give D a discount of 3 months, which was the maximum discount to be afforded to a defendant in similar circumstances. In the result, the original sentence of 13 years and 8 months' imprisonment was appropriate. (See paras.66-68, 91.)

(Per McWalters JA, dissenting)

Assessment of the assistance provided

  • (Obiter ) A problem arose when the authority concerned assessed the assistance as being of no practical value and the defendant disputed this. Where the defendant persisted in seeking a discount for his assistance then the Sivan procedure should be employed, even if there was no need for confidentiality. To further reduce the risk of disputes occurring, the prosecutor should assume responsibility for the view taken by the authority (R v Sivan (1988) 10 Cr App R (S) 282 adopted). (See paras.202-209.)
     
  • A judge considering a sentencing discount for a defendant's assistance to Father Wotherspoon's campaign should first decide whether he could confidently form the view that the defendant had contributed meaningfully to the campaign. If it was too early to form such a view he should leave any sentencing discount to be subsequently assessed by the Executive. Factors to be taken into account in assessing the discount for assistance provided included: the nature and extent of the defendant's participation; whether that participation had exposed him, or members of his family in his home country, to any risk of harm; and the benefit that had flowed to Hong Kong from that campaign. The minimum discount should be one of 6 months which, in appropriate circumstances, could be increased up to 1 year. D's sentence, discounted by 36.5% for his plea of guilty and his efforts to assist the authorities, should be further reduced by 6 months resulting in a final sentence of 13 years and 5 months' imprisonment. (See paras.222-231.)

Appeal

This was an appeal against sentence for trafficking in dangerous drugs imposed by Patrick Li J in the Court of First Instance. The facts are set out in the judgment.

Jurisdictions: 

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