HKSAR v. LIU WAI CHUN

CACC 144/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 144 OF 2001

(ON APPEAL FROM DCCC NO. 191 OF 2001)

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J U D G M E N T

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1. This application for leave to appeal against sentence raises the same question as that in Leung Kwai Ping (CACC 101/2001) in which I granted leave to appeal on 15 August 2001. That question is whether a judge errs in principle, in the case of an offender who has to be sentenced for trafficking in dangerous drugs to which a tariff sentence applies, if the only factor which the judge takes into account in deciding at what point within the tariff the starting-point for sentence should be is the amount of the drugs. In my opinion, it is arguable that the offender's role in the drugs trade is a highly relevant factor in deciding at what point within the tariff the starting-point for sentence should be. If the quantity of the drugs in which the offender trafficks determines, not merely what the appropriate sentencing band is, but also where within that sentencing band the starting-point for sentence should be, the degree of the offender's involvement in the drugs trade and the importance of his role in it - which were held to be relevant considerations in Lau Tak Ming - become irrelevant.

2. Accordingly, I grant the Applicant leave to appeal against her sentence, and I direct that she be granted legal aid. However, I also direct that her case be heard with Leung Kwai Ping, and I leave it to the Director of Legal Aid to decide whether she and Leung Kwai Ping can be represented by the same counsel.

3. In the interests of completeness, I should add that I am not in this judgment questioning the appropriateness of tariff sentences or the wisdom of laying down guidelines. All I am questioning is the way in which the guidelines are being applied in particular cases. That is not to say that there is not an argument to be made that, in attempting to achieve consistency, guidelines in drug trafficking cases remove the flexibility which the sentencing judge should have. But the use of guidelines in such cases are too entrenched for them to be questioned by a single Justice of Appeal on his own. If they are to be questioned, the impetus has to come from elsewhere.