HKSAR v Cherop Caroline

Macrae V-P and Zervos JA
Criminal Sentencing
15 July, 2 August 2021

Facts

D, a Kenyan national, pleaded guilty to one count of trafficking in a dangerous drug, namely 691 g of cocaine, and was sentenced to 14 years’ imprisonment. D appealed against sentence mainly on the ground that her counsel in the Court below failed to refer to the contents of a letter by Father Wotherspoon (the Letter), when he had been permitted to do so by the Judge and allegedly instructed to do so by D, thus depriving her of potential mitigation which might have secured her a further, admittedly small, discount on the eventual sentence. In the Letter, Father Wotherspoon set out D’s participation in his purported “campaign” against drug-trafficking (the Campaign) by giving him information which had enabled him to expand his profile of two named suspected drug traffickers online on an East African blog.

Held, unanimously dismissing the appeal, that:

(Per Macrae V-P, Zervos JA agreeing)

  1. There was no merit at all in this appeal. Apart from the question of whether the Judge knew of the contents of the Letter, D’s sentence was 6 months, and therefore significantly lower, than what she might otherwise have received on a strictly arithmetical application of guidelines to quantity (HKSAR v Fundi Furaha Giles [2019] HKCA 154 applied).
  2. The claim that the publicity generated by D’s contribution to the Campaign had been a factor which had led to a supposed reduction in the numbers of drug traffickers from Africa was speculative and had little utility in the sentencing exercise. Nowhere in the Letter was there any reference to, or copy of, any letter(s) D had supposedly written for publication on the website concerned, which the Court had always understood was the original purpose of his campaign. The Letter appeared to contain the same information which D had given to the Customs and Excise Department but had been judged to be of no practical use. No sentencing judge could conceivably have given D any recognition for such information (HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 applied).
  3. It was a matter of particular public concern if sensitive information was being placed in the public domain by the unskilled amateur, however well-intentioned, rather than the professional law enforcement agent. The provision of such information must be dealt with properly and very carefully and the information needed to be accurate and reliable. Thus, it was vitally important that judges, at both trial and appellate level, treated submissions that a defendant/appellant had contributed to the Campaign with realism, perspective and common sense and with a firm grasp of sentencing practice, procedure and principle. In the context of appeals, that meant that any attempt to introduce such material should meet the requirements of s.83V of the Criminal Procedure Ordinance (Cap.221) and was properly adduced as evidence, not assertion, innuendo and anecdote. Prosecutors had a duty to see that material which did not in their view meet these requirements was properly addressed, rather than admitted informally in letter form without demur; unless they were prepared to admit such evidence. Defence counsel and judges also had a duty to ensure that what was put forward by way of mitigation was properly adduced (HKSAR v Omogo Stephen Okuta [2021] HKCA 392 applied).
  4. Whilst a token discount may still be given for assistance to the Campaign, judges should not rely on hearsay, anecdote and mere assertions of usefulness but must look at the letter(s) (properly adduced) that had been written by a defendant or applicant, and consider their substance as well as when and how they had been written, if they were properly to act on them in the exercise of their discretion (HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 applied).
  5. A discount of up to 3 months was neither automatic nor an entitlement but represented the limit for taking part in the Campaign and was exceptional. Judges were perfectly entitled in the exercise of their discretion to give no discount for this factor at all. Where the assistance was rendered to the Campaign after sentence had been passed, then it was a matter more properly to be addressed by the Executive (HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 applied).
  6. (Per Zervos JA) As a result of the generalised nature of the Campaign and its broad objective of promoting awareness of the serious deleterious consequences to persons involved in smuggling drugs into Hong Kong, it was difficult to discern the actual role or contribution, if any, of a participant in the Campaign. Further, the question arose as to whether the real issue was the scale and scope of the sentencing guidelines for low-level participants in drug trafficking cases. Past attempts to challenge the issue of whether the sentencing guidelines for couriers were manifestly disproportionate for the criminality involved had so far failed to present sound legal argument and reliable empirical data in support. It was imperative not to lose sight of the overriding objective of a sentencing regime, which was to ensure that the sentence must not be more severe than was justified by the gravity of the offence and the culpability and circumstances of the offender (HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, HKSAR v Godson Ugochukwu Okoro [2019] 2 HKLRD 451, HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 applied).

Appeal against sentence

This was the defendant’s appeal against sentence for trafficking in a dangerous drug mainly on the ground that her counsel in the Court below failed to refer to the contents of a letter by Father Wotherspoon.