Criminal Law Ordinances & Cases

Sir Frederick Geoffrey Lawrence QC (5 April 1902 – 3 February 1967) – submission to the jury in the trial of Dr. Bodkin Adams (1956)

“Justice is of paramount consideration here, and the only way in which this can be done is for you to judge the matter on what you have heard in this court and in this court only. What you read in the papers, what you hear in the train, what you hear in the cafés and restaurants, what your friends and relations come and tell you; rumour, gossip, all the rest of it, may be so wrong. The possibility of guilt is not enough, suspicion is not enough, probability is not enough, likelihood is not. A criminal matter is not a question of balancing probabilities and deciding in favour of a probability. If the accusation is not proved beyond reasonable doubt against the man accused in the dock, then by law he is entitled to be acquitted, because that is the way our rules work. It is no concession to given him the benefit of the doubt. He is entitled by law to a verdict of not guilty”

Specimen Directions in Jury Trials (2013) and Specimen Directions (Volume 2) in Jury Trials (2020) a slight misnomer as most of these directions apply equally to the tribunal of fact and law – Judge or Magistrate – in the District Court and Magistrates’ Courts in Hong Kong. However they are fundamentally important in all criminal trials and need to be understood, not least by practitioners, as well as jurors and defendants.

The UK version on which the HK version is based is called The Crown Court Bench Book

Legal System in Hong Kong (DOJ)
Law of Hong Kong (DOJ)
Hong Kong Bill of Rights Ordinance (Cap 383)
How to be a Witness in Court (HK Police)
Prosecution Code (DOJ)
Rules and Directions for the Questioning of Suspects and the Taking of Statements
Legal Aid Ordinance (Cap 91)

Criminal Law Ordinances

Costs in Criminal Cases Ordinance (Cap 492)
Crimes Ordinance (Cap 200)
Criminal Procedure Ordinance (Cap 221)
Criminal Appeal Rules (Cap 221A)
Complex and Commercial Crimes Ordinance (Cap 394)
Control of Obscene and Indecent Article Ordinance (Cap 390)
Dangerous Drugs Ordinance (Cap 134)
Drug Addiction and Treatment Centre Ordinance (Cap 244)
Detention Centre Ordinance (Cap 239)
District Court Ordinance (Cap 336)
Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405)
Evidence Ordinance (Cap 8)
Gambling Ordinance (Cap 148)
Independent Commission Against Corruption Ordinance (Cap 204)
Juvenile Offenders Ordinance (Cap 226)
Jury Ordinance (Cap 3)
High Court Ordinance (Cap 4)
High Court Rules (Cap 4A)
Homicide Ordinance (Cap 339)
Magistrates Ordinance (Cap 227)
Organised and Serious Crime Ordinance (Cap 455)
Offences Against the Person Ordinance (Cap 212) 
Police Force Ordinance (Cap 232)
Prevention of Bribery Ordinance (Cap 201)
Probation of Offenders Ordinance (Cap 298)
Rehabilitation of Offenders Ordiance (Cap 297
Road Traffic Ordinance (Cap 374)
Theft Ordinance (Cap 210)
Training Centre Ordinance (Cap 280)

  • Joint Enterprise –  Chan Wing- Siu v The Queen [1985] AC 168 overturned by the Supreme Court (UK) but not in Hong Kong.

R v Jogee [2016] UKSC 8 & Ruddock v The Queen [2016] UKPC 7 – in this landmark judgment the Supreme Court has corrected an ‘error’ at common law that has stood for over 30 years.

“77. The rule in Chan Wing-Siu is often described as “joint enterprise liability”. However, the expression “joint enterprise” is not a legal term of art. As the Court of Appeal observed in R v A [2011] QB 841, para 9, it is used in practice in a variety of situations to include both principals and accessories. As applied to the rule in Chan Wing-Siu, it unfortunately occasions some public misunderstanding. It is understood (erroneously) by some to be a form of guilt by association or of guilt by simple presence without more. It is important to emphasise that guilt of crime by mere association has no proper part in the common law.

However the CFA in HKSAR v Chan Kam Shing FACC 5/2016 firmly rejected following the change of approach adopted by the UK Supreme Court in R v Jogee and R v Ruddock [2016] 2 WLR 681. The CFA held that ‘The joint criminal enterprise doctrine based on Chan Wing Siu and the cases following it, endorsed by this Court in Sze Kwan Lung, continues to apply in Hong Kong, operating alongside the traditional accessorial liability principles.’ Per Ribeiro PJ at para 98.

For a full and very helpful commentary on the CFA decision ,see HKU Prof Michael Jackson here

HKSAR v Chan Kam Shing: CFA Finds “No Wrong Turning” – Michael Jackson Associate Professor, University of Hong Kong’s Faculty of Law

“Late in 2016, the Court of Final Appeal (“CFA”) in HKSAR v Chan Kam Shing, FACC 5/2016 confirmed that joint enterprise liability remains part of Hong Kong criminal law. In so ruling, the CFA upheld the 1985 decision of the Privy Council (on appeal from Hong Kong) in R v Chan Wing Siu [1985] AC 168 (PC), in which Sir Robin Cooke formulated a broader basis for the imposition of secondary liability on the parties to a joint criminal enterprise than had previously been clearly established (the “wide principle”).

CFA Rejects Jogee

In re-affirming Chan Wing Siu and the wide principle, the CFA declined to follow the lead of the UK Supreme Court in R v Jogee, R v Ruddock [2016] 2 WLR 681 (“Jogee”) earlier in 2016. In Jogee, the UK Supreme Court (“UKSC”) had somewhat surprisingly concluded, more than 20 years after the wide principle was unequivocally adopted in the criminal law of the UK, that Chan Wing Siu had “taken a wrong turning at law”. The UKSC concluded that the wide principle involved a misunderstanding of the prior case law dealing with the liability of participants in a common criminal purpose. “Foresight” of what the parties to a common purpose might do beyond their agreed purpose while carrying out that purpose had been wrongly elevated into a principle of secondary liability, rather than serving at best as an evidential foundation for liability. Having identified this “wrong turning”, the UKSC in Jogee unblinkingly abolished joint enterprise liability as a separate basis of secondary party liability. Rather, the UKSC held that the liability of participants in a common purpose must instead be established using traditional accessory principles of liability, based on assisting or encouraging, with intention (or at least conditional intent) to assist or encourage the commission of the relevant offence and knowledge of all essential matters relating to that offence. Foresight in a joint judgment is only relevant as evidence of intention and not as a basis for establishing complicity.

In Chan Kam Shing, the CFA unambiguously rejected the UKSC’s conclusion in Jogee, concluding that Chan Wing Siu had not taken any “wrong turning”.

However, the CFA was not the first superior court to reject Jogee. Four months earlier, the High Court of Australia similarly declined to follow Jogee in Miller v R [2016] HCA 30 for similar reasons.

Expansion of Joint Enterprise Liability

Prior to Chan Wing Siu, the liability of participants in a joint enterprise was commonly based on Lord Parker CJ’s formulation of principle in Anderson & Morris [1966] 2 QB 110, para. 118 in 1966, that “where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, … [including] liability for unusual consequences if they arise from the execution of the agreed joint enterprise.” The “agreed” joint enterprise included such offences as had been “tacitly agreed”, but the wide principle of liability for offences which had been contemplated or foreseen as a possible incident of executing the joint enterprise clearly extended Lord Parker’s principle and exposed those who participated or continued to participate in a joint criminal enterprise with such contemplation to a wider potential liability.

The distinction between these two forms of joint enterprise liability is explicitly articulated by Ribeiro PJ in Chan Kam Shing. Further, he terms liability for offence(s) which parties to a joint enterprise set out or intended to commit pursuant to their agreed common purpose, whether expressly or tacitly agreed, as a “basic joint enterprise”. However, he states, Chan Wing Siu’s wide principle enables the conviction of the participants in a basic joint enterprise for such further offences as were contemplated or foreseen by them as possible incidents of carrying out the common purpose, but not otherwise “intended” as such. In Chan Kam Shing, Ribeiro PJ refers to this latter category as “extended joint enterprise”. He also emphasises how it provides an effective means of addressing the situational uncertainties which regularly arise when criminals operate in gangs and which may otherwise present difficulties in effectively prosecuting those participants, especially using traditional accessory principles.

The commonly stated justification for extending liability in this way builds on this concern about the unpredictability and momentum of group criminal activity and to give effective protection to the public against criminals operating in gangs (see R v Powell, R v English [1999] 1 AC 1 (“Powell, English”)).

It Must Have Been One of Them

In Chan Kam Shing, Ribeiro PJ identifies a further category of uncertainties which can arise in prosecuting group criminality which he refers to as “evidential uncertainties”. A clear example of this is the potential inability of prosecutors dealing with group criminal activity, especially fatal group attacks, to identify the principal. According to traditional accessory principles, liability of the accessories is derivative from that of the principal, who must therefore be identified. If he or she cannot be identified, then all must be acquitted. Joint enterprise liability overcomes this by permitting a prosecutor to prove that the conduct giving rise to the offence in question (eg, the fatal blow giving rise to liability for murder), took place pursuant to a joint enterprise, and must have been performed by one of the parties to that joint enterprise (ie, could not have been done by anyone else). Once this combination is proved, then the prosecutor’s case against each of the alleged parties rests on proof of their liability as a secondary party based on joint enterprise liability. If the offence was what the parties set out to commit, each is liable because they agreed or intended to commit that offence; but otherwise, liability rests on proof that the offence charged was at least “contemplated as a possible incident” (ie, extended joint enterprise). As such, this supports the view that joint enterprise liability, unlike traditional accessory liability, should be regarded as a distinct basis of liability, not derivative from that of the principal, and indeed, this viewpoint is strongly affirmed in Chan Kam Shing.

A Wrong Turning

Given the obvious and profound advantage enjoyed by a prosecutor via joint enterprise liability, why then did the UKSC in Jogee take such an adverse view of the doctrine, leading it ultimately to take the arguably unwelcome step of abolishing it?

One undoubted reason for doing so, as noted recently by Clare Montgomery QC in her inaugural lecture for the University of Hong Kong and Boase Cohen & Collins Lecture Series in Criminal Law, was an adverse political environment for the operation of joint enterprise liability in the UK. Unlike Hong Kong, where most group attacks resulting in homicide involve organised crime gangs, joint enterprise liability in the UK was said to have condemned increasing numbers of young men, especially black-British youths, to longer minimum terms of life imprisonment upon conviction for murder, largely due to little more than their “association” with those who became involved in violent attacks. Attempts to find a legislative solution to this over-reach had signally failed, and the task of rectifying common law’s creation eventually fell back onto the UKSC.

But more fundamentally, aside from these wider political concerns, the UKSC in Jogee chose to take objection to the very nature of the wide principle of liability.

Mindful of the advantages of joint enterprise liability, the UKSC had attempted to reassure prosecutors that all was not lost.

But neither these criticisms nor the proposed solutions found traction with the CFA. Ribeiro PJ, agreeing with the majority in Miller, rejected the Jogee decision for three reasons (para. 62).

First, he disagreed with the UKSC’s view of the secondary party’s culpability. Rather, he viewed joint enterprise liability as distinct from that of traditional accessories, stating the “liability of a party to a joint criminal enterprise is not derivative but arises independently by virtue of his or her participation in the joint criminal enterprise.” Second, he found “confining the secondary party’s liability to liability under the traditional accessorial liability rules and abolishing the joint criminal enterprise doctrine … creates a serious gap in the law of complicity in crime.” Third, he found Jogee’s introduction of the concept of “conditional intent” could give rise to significant conceptual and practical problems.

Fundamental Difference

One of the less welcome features of the law relating to joint enterprise liability, as it had evolved in the UK, was the adoption of the notion of “fundamental difference” to deal with differences which may occur in the manner in which a contemplated offence is actually carried out. This notion was first introduced in R v English, and purported to recognise one restriction, at least, on the operation of the wide principle, as adopted in Powell, English. As formulated in R v English, differences in a homicide case in the dangerousness or lethality of the means used to kill the deceased during an “extended” joint enterprise potentially operated to limit the liability of those parties to the joint enterprise who could not be proved to have contemplated the use of weapons at all, or the use of weapons of such dangerousness or lethality.

This restriction had always been a feature of joint enterprise liability. In Anderson & Morris, Morris was acquitted of both murder and manslaughter when Anderson suddenly, and unexpectedly according to Morris, used a knife to fatally stab the victim.

This possibility was similarly recognised by Sir Robin Cooke in Chan Wing Siu, observing that parties to a joint enterprise would escape liability (i) if they had never contemplated the offence committed by the principal as a possible incident of carrying out the joint enterprise or (ii) if they had contemplated such an offence but dismissed it as “too remote”. But, if the party accused knew that lethal weapons, such as a knife or a loaded gun were to be carried on a criminal expedition, the defence should succeed only very rarely.

“Fundamental difference”, as formulated in R v English, in effect undermined this, by dictating that a jury could only acquit a party to a joint enterprise if an alleged difference related to the dangerousness or lethality of the means used to kill. This limitation was made explicit in R v Rahman [2009] 1 AC 129.

Regrettably, defining fundamental difference in this way became an endless source of uncertainty and resulted in numerous appeals based on attempts to distinguish the lethality or dangerousness of various weapons or means of killing. The New Zealand Supreme Court declined to adopt this notion of fundamental difference into New Zealand law, noting the risk of legal principles that depend on a comparison of the dangerousness of weapons could encourage attempts to make unmeritorious (and perhaps faintly ludicrous) distinctions (see R v Edmonds [2011] NZSC 159).

Little mention was made of fundamental difference in Chan Kam Shing, and it is to be hoped that its abolition, along with joint enterprise liability, in Jogee provides a suitable opportunity to rid Hong Kong law of this notion.

Application of the Principles in Chan Kam Shing

One of the features of Chan’s appeal is that it was dismissed on the evidence on the basis that it was not actually an instance of extended joint enterprise liability. Rather, as explained by Ribeiro PJ, Chan was liable both on a “basic” joint enterprise basis, and on traditional accessory liability principles.

Where does this leave the law?

Returning to Ms. Montgomery QC’s views, it seems reasonably clear that “the law in Australia, New Zealand and Hong Kong is now settled”, save for residual problems relating to fundamental difference and withdrawal which remain to be solved. By contrast, as Ms. Montgomery QC succinctly stated: “the law in the United Kingdom and the Caribbean appears less certain.” More regrettably, Jogee, and its proposed solution to the problem of guilt by association which afflicted the joint enterprise doctrine in the UK, has, in her view, created as many legal problems as it solves. Jogee has prevented the continuing use of the doctrine but has provided no relief for those who have been disproportionately affected by it.” – Michael Jackson – Associate Professor, University of Hong Kong’s Faculty of Law

  • Costs in Criminal Cases

Tong Cun Lin v HKSAR  CFA – (1999) 2 HKCFAR 531; [2000] 1 HKLRD 113 – This case sets out the criteria for judicial discretion on the issue of costs following a criminal trial. Other issues: whilst it is accepted that no appeal lies to the Court of Appeal from a judge’s refusal of costs in a criminal case, by s. 31(b) of the Court of Final Appeal Ordinance, (Cap. 484)  … ‘any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.’ – the CFA plainly does, although ‘it would be an extreme case before [the CFA] would interfere with the judge’s exercise of discretion on such a matter.’

Procedural Issues

Important new Practice Note: New Practice where flagrant incompetence is advanced as a ground of appeal –  see HKSAR v Apelete Kokou Afla [2019] HKCA 1189, CACC 176/2017, 23rd October 2019

  • Cross examination of vulnerable witnessesRegina v Pooley (Jonathan) Regina v Lubemba [2014] WLR (D) 472 – The court gave guidance as to what measures a trial judge might legitimately take to protect a vulnerable witness without impacting adversely on the right of a defendant to a fair trial. See comment here
  • Right to silence Li Defan and Anor v HKSAR [2002] 1 HKLRD 527; (2002) 5 HKCFAR 320 – when may a judge/jury draw inferences against an accused because they had not given evidence – infringement to right to silence.

Sentencing Authorities

  • Trafficking DD 18th September 2018 – Latest wide-ranging sentencing guidelines on trafficking DD – including assistance to police/prosecution, ‘Father Weatherspoon’ applications – English sentencing guidelines not relevant in HK – current sentencing guidelines affirmed. HKSAR v Kilima Abubakar Abbas CACC 143/2016 [2018] HKCA 602
  • Mitigation – Stock VP on Mitigation – HKSAR v Yeung Kwun Kuen [2013] HKCA 455; [2014] 1 HKC; CACC 475/2012. See also Leung Pui Shan [2008] HKCA 48; CACC 317/207
  • One-Third ‘Discount’ HKSAR v Ng Wing Chung  CACC 176/2005  – additional discount (c. 10%) on guilty plea (total 40%) for admitting offences that the prosecution would otherwise not have been able to prove.
  • One Third Discount Reviewed (see also HKSAR v Lam Kai Man (below) – HKSAR v Ngo Van Nam (CACC 418/2014) and HKSAR v Abdou Maikido Abdoulkarim (CACC 327/2015) see Legal Circular No5 of2016  The issue has arisen in earlier appeals: in HKSAR v Lo Kam Fai [2016] HKEC 593, Yeung and Lunn VPP and Macrae JA all agreed that it is appropriate to consider whether there should be a different approach to sentencing between a Defendant who enters a “timely plea” and a Defendant who enters an “untimely plea”.

Macrae JA put it thus:

[T]he defendant on a rape charge, who indicates his intention of contesting his guilt, thereby obliging the case to be fully prepared with expert DNA and other scientific evidence and fixed for trial before the High Court, with the jury about to be empanelled and the traumatised victim poised to give evidence, will receive the same discount if he pleads guilty at arraignment as the drug trafficker who tenders a plea of guilty in the magistrate’s court and is committed to the High Court for sentence. The defendant who obliges the prosecution to prepare a complex fraud case over months, sometimes years, with flow charts, schedules, banker’s affirmations and expert accounting evidence, on the basis that he will plead not guilty but then changes his plea on the first day of a trial set down for several months, will generally receive the same discount for that plea as the defendant who acknowledges his guilt from the outset, cooperates with the authorities and demonstrates genuine remorse.

It seems to me that the concept of a “timely plea” has now lost much of its meaning, yet the “untimeliness” of the plea when a defendant absconds prior to trial and is subsequently re-arrested and charged with absconding is regarded as justification for reducing his discount for the original substantive offence, notwithstanding the addition of a consecutive element of sentence for having absconded. The noted American jurist, Oliver Wendell Holmes, put it well when he said:

“A good catchword can obscure analysis for 50 years.”

With respect, it is time the courts examined again what it is that amounts to a genuinely “timely plea”, what is not “timely” and what the sentencing consequences are for the “untimely plea”. (paras. 88–89).

See Also HKSAR v Lam Kai Man  [2020] HKCA 624; [2020] 4 HKLRD 107; CACC 246/2019 (27 July 2020) Criminal sentencing – discount and mitigation – guilty plea – offers of early pleas to lesser or alternative charges – proper approach by defendants – new practice following Scottish practice – extension of principles governing entering of guilty pleas set out in HKSAR v Ngo Van Nam (above) 

the age of an offender, whether youth or advanced age, is always a relevant mitigating factor in sentencing. In the case of a young offender, it is recognised that the ordinarily better opportunity for reformation and rehabilitation, likely thereafter to diminish, must assume greater significance

Chau Ching Kay, Nauthum v HKSAR [2003] 1 HKLRD 99; (2002) 5 HKCFAR 540 – It is settled law that a confession statement may be admitted in evidence if it was made voluntarily in the sense that it has not been obtained from an accused either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression. Secretary for Justice v. Lam Tat Ming & another (2000) 3 HKCFAR 168; Ibrahim v. R. [1914] AC 599; DPP v. Ping Lin [1976] AC 574; and R. v. Lam Yip Ying [1984] HKLR 419.

SJ v Lam  Tat Ming and Anor [2000] 2 HKLRD 431; (2000) 3 HKCFAR 168 – appeal, inter alia, concerns the proper approach to the exercise of this residual discretion in relation to a voluntary confession. Where a law enforcement agency through an undercover operation obtained from a suspect a confession which is held to be voluntary, how should the court approach the exercise of this residual discretion ?

  • Admission of Letters as Evidence of Good Character

The above case involved an allegation of indecent assault which took place on a plane during its flight from Munich to Hong Kong.   The 22-year old Appellant was a fourth-year medical student in a university in Sydney at the material time.   During the trial, four letters concerning the good character of the Appellant were produced collectively as defence exhibit D2 without any challenge by the prosecution.

It is not clear from the appeal bundle before the Court in what way those letters had been produced in court.   Enquiry made with fiat counsel revealed that the letters were produced under section 65B of the Criminal Procedure Ordinance (“CPO”).   However, this issue was not raised during the appeal.   Those letters covered not only the general and professional conduct of the Appellant, but also his attitudes and behaviour towards young women as observed by people surrounding him during the previous years.

In his judgment which was handed down on 17 February, 2017, DHCJ S T Poon made the following comment at paragraph 19:

” It is not the first occasion I encountered the situation where character evidence is produced or sought to be produced in the form of letters by merely marking those letters as exhibits by consent at trial.   I shall point out that this is not the proper way to adduce evidence of character witnesses.   If the character witnesses are not called to give evidence at trial, the proper way to adduce their evidence shall be under s 65B or 65C of the Criminal Procedure Ordinance (Cap. 221) and the proper procedure thereof must be followed.   There is at present in our system no “short-cut” for admission of this kind of evidence.   Whilst I note that letters of mitigation are often produced at the sentencing stage by merely handing over the letters for the court’s consideration, such practice shall not be extended to a trial proper where the rules of evidence are expected to be strictly adhered to. “

From time to time counsel for the defence may seek to adduce evidence of the defendant’s good character.

If on a sufficient basis prosecuting counsel agrees to the production of the evidence without calling the witness to give evidence at the trial, the evidence should be properly adduced under section 65B or section 65C of CPO.   Facts admitted under section 65C are deemed to be conclusively proved.   Whereas evidence tendered under section 65B has the same effect of direct oral evidence being given by the witness, such evidence can be undermined in the usual way and the Court is not bound to accept it.

The Appellant in the present appeal is an Australian with no previous criminal conviction in Hong Kong.   At trial, parties agreed that “The defendant has a clear record” by way of an admitted fact under section 65C of CPO.   Such an overall admission of a “clear record” should not be made without any factual basis.   In the absence of reliable information about a defendant’s criminal record outside Hong Kong, a restrictive admission such as “The defendant has a clear criminal record in Hong Kong” is considered to be more appropriate.   It would be a matter for the defence to adduce evidence of lack of criminal record elsewhere by calling evidence.

Copy of the judgment in HCMA 502/2016 

  • Admissibility – photos extracted from mobile phone seized from defendant at time of arrest – whether photos relevant – whether prejudicial effect of photos outweighed probative value HKSAR v Chu Kar Keet, HCCC 319/2018, 11 September 2019, CFI (Deputy Judge Woodcock) [2019] HKCFI 2294, [2019] HKEC 2988

Evidence – Your Honour, it is the defence case that the victim received his injuries not, as the prosecution allege, as a result of an assault by my client but rather as a result of a cat falling on his head and then a dog (wearing shoes) intervened and fought off the cat. In due course the defence will provide video evidence, that will completely exculpate the Defendant.   

Sentencing for Drug Trafficking: A Fresh Approach

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 [2018] 5 HLKRD 88 where McWalters JA had said, obiter:

“I agree with Lunn VP’s analysis of the law and with his conclusion. At [45] of his judgment Lunn VP refers to the effect of HKSAR -v- Abdallah [2009] 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 [2001] 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 [2003] 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.

(d) Consistency

Because of (b) and (c) consistency in sentencing in trafficking becomes so important. Consistent sentencing does not, however, mean identical sentencing.

(e) Discretion

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 [2020] 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.

(l) Totality

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 [1975] 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 [2017] 3 HKLRD 431, in which Yeung VP applied R v Thayne [1970] 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.

Conclusion

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 [2019] 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.

By Christopher MorleyWilliam Johnson  “Hong Kong Lawyer”, Sweet & Maxwell, March 2021