In a record-breaking drug bust, a man received the lengthiest sentence in Hong Kong history. On appeal, the court reviewed the sentencing principles of substantial quantities of drugs and clarified how the 6-step in Herry Jane Yusuph should be applied.
In HKSAR v Lee Ming Ho (李名豪) [2024] 1 HKLRD 1186, the Appellant was convicted of trafficking in over 34 kg of methamphetamine hydrochloride (commonly known as “Ice”). At first instance, he was sentenced to 37 years imprisonment. The Court of Appeal noted that this is the “longest sentence to be passed in Hong Kong for this offence.”
Lee Ming Ho is special in two aspects. Namely, that (1) the offence is concerned with a very large quantity of drugs that pushed beyond established sentencing guidelines, and (2) how the application of the aggravating “international element” fits in the recent 6-step approach of Herry Jane Yusuph is uncertain. Both issues arise from the Court of Appeal case of HKSAR v Abdallah [2009] 2 HKLRD 437.
“Very large quantities of drugs”
In Abdallah, the Court of Appeal was facing a problem with the sentencing guidelines for heroin existing at the time, which catered only for a quantity of up to 600 grammes. On the other hand, the quantity being trafficked is ever-increasing. The Court resolved this by extending the sentencing guideline. This extension was also applied for trafficking in “Ice”:
| Quantity | Length of Imprisonment |
|---|---|
| 600 to 1,200 grammes | 20 to 23 years’ imprisonment |
| 1,200 to 4,000 grammes | 23 to 26 years’ imprisonment |
| 4,000 to 15,000 grammes | 26 to 30 years’ imprisonment |
| Over 15,000 grammes | At the sentencer’s discretion |
Under the sentencing guidelines, the term of imprisonment for trafficking over 15,000 grammes of “Ice” or Heroin is more than 30 years and at the judge’s discretion.
In Lee Ming Ho, the 34 kg of “Ice” is far more than the former upper end of the guideline. An obvious question was raised about whether the guideline should be further extended. The Court of Appeal refused to do so, maintaining that the Herry Jane Yusuph 6-step approach should be sufficient while citing the already very severe sentence for trafficking in large quantities of dangerous drugs and the need to distinguish meaningfully between those who have taken different roles in a drug trafficking enterprise:
With such high sentences, and the extension of the ranges of sentence, the room for manoeuvre of courts sentencing in respect of very large quantities of dangerous drugs, and the ability to distinguish between those who are mere couriers or storekeepers and those who are much more involved in the organisation of a drug trafficking enterprise, becomes more and more limited and restricted…
In our judgment, it is not appropriate to issue further guidelines for quantities of dangerous drugs above 15 kilogrammes; the approach we have indicated in this judgment should be sufficient to guide judges as to the use and exercise of their discretions where very large, or even vast, quantities are concerned…
“International element”
Another issue that arises from Abdallah is the so-called “international element”, which involves the importation and exportation of dangerous drugs across borders. Under the former guideline in HKSAR v Chung Ping Kun [2014] 6 HKC 106, this is an aggravating factor that is tied to the quantity of drugs involved:
| Quantity | Enhancement of Sentence |
|---|---|
| Up to 250 grammes | 6 months |
| Between 250 and 500 grammes | 6 months to 1 year |
| Between 500 and 1,000 grammes | 1 year to 2 years |
An implication of the former guidelines is that once the quantity involved is over 1kg, the sentence would invariably be enhanced for 2 years. The Court of Appeal in Lee Ming Ho at [56] finds this illogical as it disregards the actual quantity or the role played by the defendant in the importation across the border. It is now part of the assessment of the role and culpability of the offender under Step 2 of Herry Jane Yusuph:
We must reiterate that the international element should now generally be considered as a factor when assessing the role and culpability of the offender in order to identify the appropriate starting point for sentence. In exercising their discretion, courts will still bear in mind the quantity of narcotic being introduced into Hong Kong, which not only increases the supply of the particular dangerous drug but causes greater harm to the community…
After Herry Jane Yusuph and Lee Ming Ho, it is now beyond doubt that the Court has departed from a straight arithmetic approach in sentencing drug trafficking offences. More attention is now placed on the factual circumstances of the offence and on distinguishing cases that are more culpable in nature from those that are not.
Lee Ming Ho offered an important opportunity to clarify and reinforce the operation of the 6-steps sentencing approach for drug trafficking expounded in Herry Jane Yusuph as an all encompassing framework. Factors such as “international element” now form part of the 6-steps and are no longer separated.
Gordon Chan, Esq
Barrister-at-law, Archbold Hong Kong Editor on Public Health, and Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.
