HKSAR v Smit Hector Edward
Court of Appeal
Criminal Appeal No. 163 of 2016
Macrae and McWalters JJA
Criminal Sentencing
9 November 2016

Dangerous drugs – trafficking – 933 grams of cocaine – international element – account taken of defendant’s participation in controlled delivery operation – failure to indicate by how much starting point would have been enhanced for international element if had been no participation in controlled delivery operation – proper course was to assess starting point, enhance it for international element, then discount overall notional sentence as appropriate

D pleaded guilty to unlawfully trafficking in dangerous drugs, namely 933 grams of cocaine, by bringing them into Hong Kong concealed in his suitcase. He participated in a controlled delivery operation in respect of those dangerous drugs. D was sentenced to 15 years and 4 months’ imprisonment. The Deputy Judge adopted a starting point of 22 years, evidently having rounded up by 5 months the starting point of 21 years and 7 months’ imprisonment which would be reached on a purely arithmetical approach. That starting point of 22 years was enhanced by 1 year for the international element to arrive at a notional sentence after trial of 23 years’ imprisonment. The Deputy Judge said that she noted D’s cooperation from the outset. She also said that for the quantity of dangerous drugs involved any enhancement would be at the higher end of the range of 1 to 2 years’ imprisonment. So it would appear that the enhancement had been reduced by reason of D’s participation in the controlled delivery operation. D applied for leave to appeal against sentence out of time.

Held, granting leave and reducing the sentence from 15 years and 4 months’ imprisonment to 14 years and 6 months’ imprisonment, that:

  • There was a problem with the Deputy Judge’s approach in that it did not indicate by how much the starting point would have been enhanced for the international element if there had been no participation in a controlled delivery operation.
  • The proper approach in cases like this one was to assess the starting point (in accordance with the guidelines in HKSAR v Abdallah), enhance it for the international element (in accordance with the guidelines in HKSAR v Chung Ping Kun), and then discount the overall notional sentence as appropriate.
  • Since the starting point had been rounded up by 5 months, and since it was not known what the enhancement would have been had it not been apparently reduced for D’s participation in the controlled delivery operation, it would be appropriate for the Court to approach sentence again, doing so in the more methodical way which it had indicated.
  • Doing so, a starting point of 21 years and 7 months was adopted and enhanced by 21 months for the international element. Accordingly, the notional sentence after trial became 23 years and 4 months’ imprisonment. Given D’s guilty plea at the earliest opportunity and his participation in the controlled delivery operation, the sentence was reduced to 14 years and 6 months’ imprisonment. The overall discount, therefore, represented 37.85 percent from the appropriate sentence after trial. 
Jurisdictions: 

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