In November 2020, the Court of Appeal handed down its decision in HKSAR v Herry Jane Yusuph [2020 HKCA 974]. The Judgment primarily addresses the issue of discretion when sentencing those convicted of drug trafficking. In this article, the decision and its likely impact is examined.
Background of the Appeal
The Appellant pleaded guilty at committal to trafficking in 48.3 grammes of cocaine. The case was remitted to the High Court for sentence where the Appellant was sentenced to 5 years and 8 months imprisonment. The Prosecution also applied for the forfeiture of US$1,800 found in cash on her person at the time of her arrest. After hearing evidence on the application, the Deputy High Court Judge ordered the forfeiture of the money in full. In granting leave to appeal the sentence and the forfeiture order, McWalters JA held:
“This raises the question of the effect of recent Court of Appeal authority in drug sentencing cases. In my view it is reasonably arguable that:
(i) the initial starting point is reached by a discretionless arithmetic calculation within the relevant sentencing band;
(ii) once this arithmetic starting point is calculated the sentencing discretion comes into operation;
(iii) the sentencing discretion operates firstly to enhance the starting point by reference to any aggravating factor. This then becomes the court’s final starting point before allowing for any mitigation; and
(iv) this final starting point is then discounted for the mitigating factors which usually will be:
(a) a plea of guilty (maximum of one-third);
(b) assistance to the authorities (which can be up to a full one-third discount on its own and which in conjunction with a plea of guilty can take the normal one-third discount up to a maximum of two-thirds); and
(c) any other mitigation. It is unclear where this mitigation may come into play. Does it operate, where there is a plea of guilty, ay step (iii) as a measure to lower the final starting point or does it operate as a separate and new step (v) at the end of the sentencing process. Such form of mitigation may be a compassionate allowance by the courts in response to the defendant’s personal circumstances or a discount, as is claimed by this applicant, within the three months’ maximum that the Court of Appeal has allowed for participation in Father Wotherspoon’s campaign.
If this is the way the law has developed then it would seem appropriate for the prosecutor and defence counsel to agree on the arithmetic calculation and to place that before the sentencing court. The sentencing court can then turn to the prosecutor and ask if they are relying on any aggravating fact or to enhance that starting point before turning to defence counsel to hear what is being advanced in mitigation.”
In the November 2018 issue of Hong Kong Lawyer we reported on the majority decision of HKSAR v Kilima Abubakar Abbas  5 HLKRD 88 where McWalters JA had said, obiter:
“I agree with Lunn VP’s analysis of the law and with his conclusion. At  of his judgment Lunn VP refers to the effect of HKSAR -v- Abdallah  2 HLKRD 437 in narrowing the room for reflecting the difference in role between a mere courier and those involved in a more major way in the organisation of the drug trafficking activity. This is a matter for concern. The sentencing regime must allow for the possibility that there will be large seizures of dangerous drugs and also the possibility that persons, other than couriers, who are more heavily involved in this criminal activity, will be prosecuted. When these possibilities coincide, I fear that courts may find that the sentencing range available to them to reflect these aggravating factors may not enable them to adequately distinguish the culpability of the courier from that of the organiser.”
McWalters JA, in the same judgment, had expressed concern with the statement of Stuart-Moore ACJHC in HKSAR v Manalo  1 HKLRD 557 in which he had said:
“The policy of this Court in relation to trafficking in drugs of these kinds has been to maintain a consistent level of sentencing under the guideline cases earlier mention so that potential traffickers who are frequently couriers or storekeepers, will be deterred from engaging in such activities. Consistency, in this context, is related to sentences which are largely based upon the weight of the drugs being trafficked. If this Court were to decide otherwise, the courts at first instance would find themselves endlessly being asked to consider the degree of culpability related to individual couriers and storekeepers. The guidelines, whilst of course not strait-jackets, are there to provide and maintain consistency of sentence between all offenders who traffick in dangerous drugs. It is important for the courts to avoid distinctions, which will often be irrational or speculative, being drawn between drug traffickers who are couriers or storekeepers because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.”
Of this last sentence McWalters JA did not see a proper legal rationale for not distinguishing between the culpability of offenders, seeing it as a proper and normal judicial role to assess and decide on such matters.
On the issue of forfeiture, McWalters JA had in earlier cases expressed reservations on whether the Court of Appeal has jurisdiction to hear an appeal against a forfeiture order as part of an appeal against sentence and on that basis gave leave to appeal the forfeiture order.
The Decision on Sentence
The Judgment is important, which included the Vice Presidents of both the English and Chinese divisions of the Court of Appeal, namely Yeung VP and Macrae VP, and Zervos JA. In giving the unanimous decision of the Court, Macrae VP comprehensively reviewed the authorities on sentencing for drug trafficking in Hong Kong, looking at sentencing principles in other jurisdictions, and concluded as follows:
(a) Sentencing Guidelines
Sentencing guidelines are exactly that. They are lines to guide a judge in sentencing, rather than fixed, compulsory or arbitrary straitjackets. Referring to Lord Woolf CJ in R v Milberry  1 WLR 546 in which he said:
“Guideline judgments are intended to assist the judge arrive at the correct sentence. They do not purport to identify the correct sentence. Doing so is the task of the trial judge.”
and to Gleeson CJ (as Gleeson NPJ then was) in the Australian case of Wong-v- The Queen (2001) 207 CLR 584 where he had said:
“The expression “guidelines” and “guidelines judgments” have no precise connotation. They cover a variety of methods adopted by appellate courts for the purpose of giving guidance to primary judges charged with the exercise of judicial discretion. Those methods range from statements of general principle, to more specific indications of particular factors to be taken into account of given particular weight, and sometimes to indications of the kind of outcome that might be expected in a certain kind of outcome, other than in exceptional circumstances.”
Macrae VP said that: “the goal of sentencing guidelines must be to achieve reasonable consistency in general, and justice in a specific, individual case.”
(b) The Role of the Defendant
There is often little to differentiate between the facts of different cases and the role played by a defendant. The true role is not easy to discern with any great certainty. This had been said in Kilima (supra). Because of this difficulty, sentencing policy in Hong Kong proceeds on the basis that the defendant is a courier or storekeeper unless it can be demonstrated otherwise.
(c) Seriousness of the Offence
Trafficking in dangerous drugs is an extremely serious offence carrying a maximum sentence of life imprisonment and a fine of HK$5 million. The reasons for a defendant’s involvement in the crime, and/or his personal circumstances are of far less importance than society’s duty to protect its citizens.
Because of (b) and (c) consistency in sentencing in trafficking becomes so important. Consistent sentencing does not, however, mean identical sentencing.
Although the guidelines are devised for those at the bottom of the hierarchy (couriers and storekeepers) sentencing judges have a discretion to go above or below the arithmetically determined notional sentence after trial. Macrae VP cautioned: “Labels can be easily applied, but they can sometimes be inapposite in conveying the real role of the defendant in question” and “It is important that however the judge characterises the trafficker concerned, it should ultimately be assessed on an individualised basis.”
(f) HKSAR v Manalo
The statement by Stuart-Moore ACJHC in Manalo which had concerned McWalters JA in Kilima appeared to have suggested that once the label of courier or storekeeper is applied to a defendant, then there was no need to look any further at the defendant’s role and the courts should not make nice distinctions between different types of courier or storekeeper. This, with respect is wrong, and runs contrary to the line of authority from Lau Tak-ming onwards. In any event the judgment of Stuart-Moore ACJHC in Manalo was obiter and must now be considered per incuriam. The principal judgment given by Leong JA in Manalo correctly stated the principle that ”the role played by an offender is always part of the circumstances for a sentencing judge to consider”.
(g) Sentencing Approach (Couriers and Storekeepers)
The first step when approaching sentence for drug-trafficking is to identify the relevant guideline band applicable to the quantity of the drug concerned. There are guidelines for most drugs including heroin, cocaine, ice, ketamine and ecstasy. The second step is to assess the role and culpability of the defendant based on the available evidence. Care should be taken not to stretch the term “courier” simply because it is recognised to be the lowest rank in the trafficking hierarchy. In the recent case of HKSAR v SK Wasim  2HKLRD 1139 for example, the offender had been asked to move 15 cartons of (what he knew to be) cannabis resin from the corridor into a unit in Chungking Mansions and had been paid HK$200. He was not a “courier” in the sense intended by the authorities.
(h) The Direct Trafficker, the Manager and the Operator
Where the defendant could be shown by admission or by evidence to be dealing in or distributing dangerous drugs, he is in a more serious position. Above that person is the manager or organiser of those who deal or distribute on his behalf. Above that person is the operator or financial controller who is making substantial gains from the trade of drug trafficking. Even more serious is the international operator whose commercial operation transcends jurisdictional boundaries. Where a defendant’s role and culpability fall in determining the starting point must be a matter for the sentencing judge based on the evidence before the court.
(i) Identify the Band
Having assessed the defendant’s role and culpability the sentencing judge should then identify where in the relevant band of the guidelines the defendant comes always bearing in mind that it may be necessary to go above or below the band given the particular circumstances of the commission of the offence and the role of the defendant.
(j) Aggravating Factors
Having identified the starting point, the sentencing judge should consider those factors which call for an enhancement of sentence e.g. previous convictions for drug-trafficking, cross-border trafficking, dealing in more than one type of drug or the use of young person or minors to carry or deal in dangerous drugs, explaining the reason for the enhancement for the sake of transparency and for the purposes of any subsequent review by an appellate court.
(k) Mitigating Factors
The next task for the purposes of sentence is to have regard to any mitigating factors, bearing in mind that where drug-trafficking is concerned, personal circumstances will count for little. The one-third discount for a guilty plea is not an impenetrable ceiling beyond which a judge cannot go if he has good reasons in the proper exercise of his discretion. These may include the giving of information which is of practical use, the giving of evidence or being ready to give evidence, successful or sometimes genuine protracted participation in a controlled delivery, unconscionable delay and positive good character (which is something more than merely having a clear record). All mitigating circumstances should be taken into consideration when assessing the overall discount from the notional sentence after trial.
The final task is to stand back and look at the overall sentence passed in order to ensure it is fair, just and balanced.
(m) Assistance to Father Wotherspoon’s Campaign
The Court re-iterates that no more than a “token” discount can be given for this factor and whether any, and if so, how much discount is given is entirely within the judge’s discretion, which will not be lightly interfered with by an appellate court. Macrae VP expressed the hope that this ground of appeal would not be put before the Court again.
The Decision on Forfeiture
The Court first examined whether it had jurisdiction to entertain an appeal against a forfeiture order. Counsel for both parties were in agreement that the Court of Appeal had jurisdiction to deal with a forfeiture order in an appeal against sentence as it forms part of the sentence imposed on a defendant.
The Court then looked at whether the difference in wording in section 83(G) and 83(H) of the Criminal Procedure Ordinance (“CPO”) meant that someone convicted of an offence on an indictment had a more restrictive right of appeal against his sentence compared to someone who pleaded guilty in the Magistracy.
Section 83(H) of the CPO provides “rights of appeal against sentence when a person is dealt with by the Court of First Instance … for an offence of which he was not convicted on indictment”, which is to be read together with section 80(1) of the CPO which states that “’sentence’, in relation to an offence, includes any order made by a court in dealing with an offence…”.
Section 83(G) of the CPO, on the other hand, which concerns appeals made by persons convicted of an offence on indictment, provides that the person “may appeal to the Court of Appeal against any sentence…. passed on him for the offence, whether passed on his conviction or in subsequent proceedings”.
R v Hayden  1 WLR 852 was cited – the Court in that case explaining that a “sentence” refers to an order made by a court when dealing with someone who has offended, in respect of his offence; and that the difference in wording between sections 9 and 10 of the Criminal Appeal Act 1968 (being the equivalent of section 83 (G) and (H) of our CPO), is simply to distinguish between defendants convicted on indictment and those convicted upon their own plea.
Macrae VP also examined HKSAR v Chan Yuen Yee Carrie  3 HKLRD 431, in which Yeung VP applied R v Thayne  1 QB 141 and declined to assume jurisdiction on an appeal against the trial judge’s order to estreat bail money after the appellant failed to attend her trial. The Court here agreed with the submissions by both parties that Chan Yuen Yee Carrie and Thayne may be distinguished as the appeals were against an order concerning procedural matters arising from court proceedings, unrelated to the defendants’ offending or the sentencing for the said offending.
Macrae VP noted that there should no longer be any doubt as to whether the Court of Appeal had jurisdiction to entertain an appeal against a forfeiture order made against a convicted person under the Dangerous Drugs Ordinance.
The Court of Appeal has rejected the notion of a discretionless starting point based solely upon the quantity of a dangerous drug. Macrae VP in the judgment states:
“The sentencing court must have a discretion in all cases to assess the role and culpability of the defendant when deciding where in the sentencing band (or, perhaps, outside the band) the defendant falls.”
Noting that the New Zealand Court of Appeal was not prepared (in Zhang & Ors –v- The Queen  NZCA 507) to dispense with quantity as “the first determinant of sentencing”, Macrae VP affirmed that sentencing “involves a full evaluation of the circumstances to achieve justice in an individual case.” This will come as a welcome approach to criminal defence practitioners who, since Manalo, have often felt that the scope for mitigation is limited, brittle and uncompromising in drug-trafficking cases. Likewise, for judicial officers who may have felt restrained in the exercise of their discretion. The decision acknowledges that there is scope to go below the bands to reflect lesser culpability. Whilst confirming that personal circumstances will count for very little in drug trafficking cases, the decision, in finding the judgment of Stuart-Moore ACJHC in Manalo to be per incuriam (and in any event contrary to the principal judgment of the Court in that case) will breathe new possibilities for imagination and discretion into a courtroom where the protagonists seek to arrive at a just and fair disposal.
The Court of Appeal has jurisdiction to hear an appeal against a forfeiture order made under the Dangerous Drugs Ordinance.