The sentencing of drug traffickers should now follow the 6 steps approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
Drug trafficking has been one of the most serious offences in Southeast Asia, often resulting in capital punishment. In Hong Kong, a person can be sentenced to decades of imprisonment for a seemingly modest quantity of dangerous drugs.
The influx of dangerous drugs has been a problem in Hong Kong over the past few decades. As a result, Hong Kong has developed a rich body of case law in this area.
On the other hand, as one of the most serious offences, trafficking in a seemingly modest quantity of drugs could attract a lengthy sentence of imprisonment. For example, merely 0.6 kg of Cocaine could result in 20 years of imprisonment. Thus, over the years, the Court identified numerous factors that could bear on the sentence. For example, international elements, partial self-consumption, extreme youth, assistance to authorities, or even participation in Father Wotherspoon’s campaign. At times, there are inconsistencies as to how these factors interplay in arriving at the final sentence.
The Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 had taken an overview of the sentencing principles for drug trafficking in the past and set out the 6-step approach in arriving at an appropriate sentence. Clarifying the confusion as well as providing a framework for a more consistent sentence between cases and judges. There is also a detailed discussion for each step. This is now the essential case for reference in this type of offence.
| Order | Step [Para] |
|---|---|
| 1 | Identify the applicable guideline and band [57] |
| 2 | Assess the role and culpability of the defendant [58] |
| 3 | Identify the starting point by reference to the band [69] |
| 4 | Consider aggravating factors [70] |
| 5 | Consider mitigating factors [73] |
| 6 | Ensure the overall sentence is fair, just and balanced [79] |
The Court of Appeal decision clarified how the different and often complex factors interplay with each other, providing a consistent approach to sentencing for one of the most serious offences in Hong Kong
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.
