HKSAR v. RAMAN KAPUSAMY

CACC 32/2020 & CAAR 2/2022, [2024] HKCA 296

On Appeal From [2020] HKCFI 635 & On Review From [2022] HKCFI 57

(Heard together)

CACC 32/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 32 OF 2020

(ON APPEAL FROM HCCC NO 126 OF 2019)

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AND

CAAR 2/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 2 OF 2022

(ON REVIEW FROM HCCC NO 130 OF 2020)

________________________

________________________

(Heard together)

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JUDGMENT AND REASONS FOR JUDGMENT

__________________________________________________________

Hon Macrae VP (giving the Judgment and Reasons for Judgment of the Court):

A.  Introduction

1.  These two appeals were heard together at a joint appeal hearing in order to enable the Court to consider a similar point, which was not only common to them both but which might have an impact on future sentencing involving international drug smuggling. For that purpose, the Court was comprised of three members rather than two.

2.  After a hearing on 16 August 2023, we dismissed the application in CAAR 2/2022 and reserved our decision in CACC 32/2020, indicating that we would hand down our decision and reasons for decision in due course. Since two members of this Court were involved in another appeal, which had concluded two weeks earlier on 2 August 2023, namely HKSAR v Lee Ming Ho[1], where similar arguments to some of those presented in the present case had been put forward, we considered it prudent to await the outcome of that particular appeal, in which the Court’s decision might be expected to have a bearing on several of the issues arising in this appeal. The decision in Lee Ming Ho was handed down on 6 February 2024.

A.1.  CACC32/2020

A.1.1.  The background

3.  The applicant faced one count of trafficking in a dangerous drug and was tried in the High Court before D’Almada Remedios J (“the judge”) and a jury. On 12 March 2020, he was convicted and sentenced to 26 years’ imprisonment.

4.  The Single Judge refused the grant of leave to appeal against both conviction and sentence to the applicant, who was acting in person at the time[2]. The applicant thereafter renewed his application for leave to appeal against both conviction (for which the applicant was by then represented by Mr Boyton) and sentence (for which he was not represented). On 9 March 2023, the Court of Appeal refused to grant leave and dismissed the applicant’s appeal against conviction[3]. However, an Appeal Aid Certificate was granted to the applicant by the Court in relation to sentence. Subsequently, the applicant filed an affirmation[4] in support of his application for an extension of time in which to file his amended grounds of appeal against sentence.

A.1.2.  The facts

5.  On 3 June 2018, the applicant departed by air from Ho Chi Minh City, Vietnam and arrived at Hong Kong International Airport the same day. He had with him one piece of check-in luggage, inside of which was found a total of 2,970 grammes of a crystalline solid, containing 2,956 grammes of methamphetamine hydrochloride (commonly known as “Ice”).

6.  In a subsequent video-recorded interview conducted with Customs officers, the applicant claimed that an old school friend called “Chandru” had asked him to do something for him by going first to Vietnam, then to Hong Kong. All expenses for the trip were to be provided, including flights and hotel accommodation, and a passport was applied for on his behalf. Chandru promised the applicant that if he did the job, an existing debt he owed of 500 Ringgit would be discharged. The applicant repeated his account under oath before the jury, adding that at the time, he was in dire financial straits and believed he was carrying gold bars for Chandru for a reward of the equivalent of some HK$10,000. By their verdict, the jury found that the applicant knew what he was carrying into Hong Kong, and that it was dangerous drugs.

A.1.3.  Mitigation

7.  According to the applicant’s antecedent statement at trial, the applicant was 35 years of age at the time of sentencing and a casual labourer earning a monthly income of about 300 to 400 Malaysian Ringgit (some HK$600 to $700). He was also in receipt of social security payments of about 300 Malaysian Ringgit per month. His wife was a housewife and they had three young children[5].

A.1.4.  Reasons for sentence

8.  The judge accepted that at the time the applicant knowingly brought the “Ice” into Hong Kong for a reward, he was experiencing difficult financial circumstances[6]. Having adopted a starting point of 24 years’ imprisonment, in accordance with the sentencing guidelines in HKSAR v Abdallah[7], she then enhanced the starting point by 2 years for the international element involved in carrying more than a kilogramme of narcotic over the border into Hong Kong. Accordingly, the sentence became 26 years’ imprisonment[8].

A.2.  CAAR 2/2022

A.2.1.  The background

9.  The respondent faced one count of trafficking in a dangerous drug and was found guilty after trial before Deputy Judge Bruce SC (“the deputy judge”) and a jury in the High Court. On 24 November 2021, she was sentenced to 22 years and 4 months’ imprisonment.

10.  The respondent applied for leave to appeal against her conviction, which was refused and the appeal dismissed by this Court on 11 January 2023[9]. However, a year earlier, on 10 January 2022, the Secretary for Justice had also applied for leave to review the respondent’s sentence, pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221, on the basis that the sentence was manifestly inadequate and/or wrong in principle.

A.2.2.  The facts

11.  On 16 July 2019, the respondent, who was the holder of a Ukrainian passport, arrived at Hong Kong International Airport on a flight from Addis Ababa, Ethiopia. She had with her a black suitcase, a backpack and one piece of check-in luggage. Having been intercepted for Customs examination, a Customs officer cut open the lining of the black suitcase and discovered 1,467 grammes of a solid containing 1,080 grammes of cocaine, with an estimated street value of HK$2,083,140.

12.  The defence case, consistent with the respondent’s account in her video-recorded interview, was that she had been manipulated into bringing the cocaine to Hong Kong. The respondent was an assistant epidemiologist in the field of infectious diseases in Ukraine and had no particular financial problems. Her boyfriend, known as “Dimanche”, whom she had made contact with online but had never actually met in person, had instructed her to collect the black suitcase when she was in transit in Addis Ababa and bring it to Hong Kong. She also revealed that this was the third time she had handed things over to someone on the instructions of Dimanche when she was abroad. On all three occasions her boyfriend had paid for the trips supposedly for them to meet, but each time he had failed to materialise as promised; nevertheless, he had on each occasion asked her to pass something on to others at the last minute. She had told a close friend of her suspicions about these arrangements. Hence, the common sense question for the consideration of the jury was whether the respondent may have been an unwitting dupe or victim in a ‘love scam’; or whether she was a knowing participant in a drug trafficking syndicate or enterprise. By their verdict, the jury must have been sure that the respondent knew she was bringing cocaine into Hong Kong.

A.2.3.  Mitigation

13.  The respondent was, at the time of sentence, a 37-year-old Ukrainian citizen, unmarried and an assistant epidemiologist by profession. Her medical history was a little unusual, revealing that since her arrest and detention, she had been diagnosed with cancer of the uterus[10] and had undergone a complete hysterectomy, involving the surgical removal of her uterus. Follow-up appointments had duly been scheduled with her[11].

14.  Somewhat unusually, prosecuting counsel was asked by the deputy judge for her view of the respondent’s medical condition in the context of the sentencing exercise he was to perform, and the following exchange between the court and prosecuting counsel took place[12]:

“COURT: There seems to be no relevant mitigation other than the medical condition which she has experienced culminating in substantial surgery.

MS CHEUNG: Yes.

COURT: And I think that, as I said to Mr Donald, the only thing -- normally there’s no way I could take account of her being a stranger in a strange land and including in prison. You come to Hong Kong with drugs you expect, if you’re caught, you’ll be dealt with and you’ll be dealt with in the ordinary way. But it did occur to me that there are perhaps particular difficulties here because, I mean, as a community we’ve done a marvellous thing. We have provided obviously top-grade medical attention...

MS CHEUNG: Yes, yes.

COURT: ... as part of our obligations -- humanitarian obligations to make sure that every prisoner in our system is safe and all of that. But there is, nevertheless, a consequence to all of this for her that every time she goes to the doctor for a check-up -- if I had an operation on my knee, I’d be going along to have an operation on my knee. There are issues of the laws of physics which I don’t invite you to go into as far as that’s concerned. But the point I make is that there is an additional dimension because she’s now got a history of cancer ...

MS CHEUNG: Yes.

COURT: ... and that anxiety must travel with her to each medical check from now on.

MS CHEUNG: Yes, yes, my Lord, I understand that. My Lord, it is entirely in your hands to exercise your discretion. If the court is minded to take into account of the defendant’s medical conditions and the anxiety of the recurrence of cancer, I think, the prosecution’s position is neutral.

COURT: I appreciate that.

MS CHEUNG: Yes.

COURT: And I understand why.

MS CHEUNG: Yes.

COURT I think that that’s very helpful. I am minded to take it into account.” (Emphasis supplied)

A.2.4.  The sentence

15.  After reciting the facts and the respondent’s relevant health history, the deputy judge accepted that[13]:

“…there are scheduled follow-up appointments and no doubt when cancer has been detected, even if it has been removed by the surgery, there will be an increased anxiety for any future tests. I can readily accept that this would be a serious psychological impact as a result of the (removal of the) uterus of a woman of the age and circumstances of the accused”.

16.  He said that trafficking in 1,080 grammes of cocaine should attract a starting point of between 20 and 23 years’ imprisonment, under the sentencing guidelines laid down in R v Lau Tak Ming and others[14]; Attorney General v Rojas[15]; and Abdallah. He considered that following the Court’s recent decision in HKSAR v Herry Jane Yusuph, it was “critical” to characterise accurately the respondent’s role, since “in appropriate cases, it would be open to the sentencing court to sentence above or below the mathematical application of the relevant guideline”[16].

17.  The deputy judge characterised the respondent as an “international courier” which, under established authority, warranted an enhancement of sentence[17]:

“A mathematical application of the sentencing guidelines suggests a sentence of 22 years and 4 months. No discount is available to the accused. It is clear that she must be treated as an international courier of dangerous drugs. Established authority supports the conclusion that there should be an enhancement of sentence to reflect that fact. On the basis of the application of Herry Jane Yusuph (above), it would be abundantly clear that a sentence greater than the mathematical application of the sentencing guidelines is justified.”

18.  The deputy judge specifically referred to the harm caused by the respondent’s act, as well as to her personal circumstances[18]:

“The carrying of a bag containing the hidden cocaine by the accused was, in my opinion, an act of monumental stupidity. The act of bringing just over 1 kilogramme of cocaine into Hong Kong has the potential to do serious harm to members of the community. Mercifully, by the interception of the luggage of the accused, that kilogramme has been taken out of circulation. While in custody in Hong Kong, a serious medical condition in the accused was detected and major surgery undertaken. The saving grace for the accused is that Hong Kong takes seriously its obligation to ensure the safety and medical health of persons who were arrested in Hong Kong - whatever their background and whatever their nationality. Leaving aside the physical pain of the condition, the surgery and the recovery, given the nature of the operation, there must be a deeply personal pain as well. What I have decided to do is not add to the misery of the accused by sentencing her above the mathematical application of the sentencing guidelines, although there are powerful and cogent justifications for so doing. Had I done so, I would have considered going above the mathematical application of the sentencing guidelines by something of the order of between 12 and 18 months, and probably closer to the latter than the former.”

19.  He then voiced what he conceived to be his “dilemma” in sentencing the respondent[19]:

“I perfectly recognise the contradiction between the imperative of deterrence and the appropriate response to an obvious psychological and physical blow suffered by the accused as a result of the detection of cancer and its treatment. The two imperatives are largely irreconcilable and the sentence I have proposed to impose is a wholly imperfect response to that. At the end of the day, the order of the court is that the accused be imprisoned for 22 years and 4 months.”

B.  The two appeals

20.  Mr David Boyton appears with Ms Athena Cheung in CACC 32/2020; and with Ms Peggy Pao in CAAR 2/2022. Mr Derek Lau and Ms Katie Fong appear for the respondent and the applicant in the two cases respectively.

B.1.  CACC 32/2020

B.1.1.  Grounds of appeal

21.  By Ground 1, Mr Boyton argued that Hong Kong, which has long based its sentencing regime on the quantity of narcotic involved in a given case, should have regard to changing international attitudes towards drug couriers, which, he said, placed greater emphasis on an offender’s vulnerability, role and culpability. He pointed to the following factors, which suggested that the applicant was a vulnerable person and a “subordinate courier”, who would be considered to be less culpable in other jurisdictions:

(a)  Had Chandru not taken advantage of the applicant’s financial situation and effectively enticed him by paying for all his needs and expenses (flights, hotel accommodation and passport), the applicant would have been unlikely to commit the offence in the first place.

(b)  There was no evidence that the applicant knew of the actual nature of the drug he was carrying, or its quantity or value.

(c)  The reward of 500 Ringgits was insignificant when compared with the retail value of the consignment (representing only 0.6% of its value).

(d)  The applicant’s only motivation was financial gain.

(e)  Everything had been arranged for the applicant and he was merely required to follow his instructions; at no stage could he make any decisions himself.

(f)  The applicant was even more vulnerable than other couriers, because he owed Chandru a debt, which would be discharged if he trafficked in dangerous drugs.

22.  Mr Boyton also contended that the applicant was a victim of human trafficking in accordance with the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime (also known as “the Palermo Protocol”). According to Article 3(a) of the Palermo Protocol, “trafficking in human” means:

“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.

Mr Boyton acknowledged that while the People’s Republic of China had become a signatory to the Palermo Protocol in 2010, it had been specifically declared that the protocol did not apply to Hong Kong. Nevertheless, Mr Boyton submitted that Hong Kong had a duty to comply with the international policies and obligations of the People’s Republic of China and follow their spirit.

23.  By Ground 2, Mr Boyton submitted that a sentencing court has the discretion not to enhance the sentence for the international element in view of an offender’s vulnerability, role and culpability. He relied on the decision of the Court of Appeal of England and Wales in R v Boakye & Others[20]for the apparent proposition that a sub-class of disadvantaged defendants from under-developed countries, and trafficking for a small reward, would entitle such traffickers to receive a significantly shorter sentence. If this approach were likewise to be adopted in Hong Kong, it should be reflected at Step 2 of the Herry Jane Yusuph approach (instead of being a mitigating factor under Step 5), thereby resulting in a sentence lower than the relevant tariff band envisaged at Step 3[21]. Alternatively, it would be reasonable for a judge to exercise his discretion not to enhance a sentence for the international element, where the offender was a vulnerable, indebted or impoverished “drug mule”.

24.  While the judge did not have the benefit of the more structured approach in Herry Jane Yusuph, since the sentencing exercise in the present case pre-dated that Court’s decision[22], it was submitted she had evidently not exercised her discretion, since the sentence was manifestly excessive and wrong in principle.

B.1.2.  The respondent’s reply

25.  Mr Lau submitted that, even in cases where vulnerable persons acted as couriers, the starting point should be enhanced for the international element, which remained a valid and persuasive consideration in sentencing traffickers in other jurisdictions, where the importation or exportation of dangerous drugs were ordinarily regarded as more serious than local trafficking.

26.  Under the approach in Herry Jane Yusuph, Step 1 was to identify the relevant sentencing band by reference to the quantity of the narcotic, which, under Abdallah, does not take into account any aggravating circumstances. Accordingly, the sentencing bands alone could not sufficiently address the need for deterrence where the drug trafficking involved an international element.

27.  Having established the relevant sentencing band applicable to the amount of dangerous drug involved, the court would then identify the appropriate starting point by reference to the role and culpability of the offender under Steps 2 and 3 of Herry Jane Yusuph. The sentence in the present case did not address the mischief at which the aggravating factor of the international element was directed: namely, the enormous damage suffered by the community as a result of an extra quantity of dangerous drugs being introduced to the local market. Mr Lau relied on a recent decision of the Supreme Court of New South Wales, namely R v Stanbouli[23], to argue that in cases where large quantities of narcotics were imported into the jurisdiction, any difference between a major and a minor role may be so “overshadowed” by the quantity as to be of limited weight.

28.  The respondent submitted that the international element was separate and distinct from the role played by an offender. Hence, it should be a standalone aggravating factor to be considered at Step 4 of the Herry Jane Yusuph approach and should not be subsumed as an aspect of the offender’s role under Step 2.

29.  Under Step 5 of the approach in Herry Jane Yusuph, Mr Lau maintained that it has been repeatedly emphasised by this Court that an offender’s personal circumstances would count for little or nothing, unless they were exceptional[24]. He was concerned that Mr Boyton was advocating a departure from this long-held position.

30.  As for the suggestion that the courts in Hong Kong should follow the approach of other jurisdictions in sentencing so-called “drug mules”, it was the respondent’s position that the Hong Kong courts have on several occasions considered the application of the Sentencing Council Guideline in England and Wales, but found it inapposite in the context of Hong Kong, which aims in this area of the law at consistency of punishment and severe sentences. An approach which allows personal circumstances such as alleged poverty, gullibility, or being a victim of human trafficking to become a mitigating factor does not sit well with the established principles of this Court. Indeed, such a policy could be exploited and abused by international drug traffickers, who would use vulnerable persons to deliver their dangerous drugs. Such persons would then use such vulnerability to plead for a reduced sentence. This would jeopardise the sentencing regime in Hong Kong, which has proved to be effective in combatting, or at least containing, the evils of international drug trafficking[25].

31.  In the present case, Mr Lau submitted that the jury had found that the applicant knowingly imported the dangerous drug, within the meaning of section 2 of the Dangerous Drugs Ordinance, Cap 134. Accordingly, the international element needed to be properly reflected in the sentence. The fact that the applicant might only be a courier did not diminish the harm to the local community caused by his unlawful act.

B.2.  CAAR 2/2022

B.2.1.  Grounds of review

32.  By Ground 1, the applicant complained that the deputy judge did not properly apply Herry Jane Yusuph when sentencing the respondent; accordingly, the sentencing exercise miscarried and the resulting sentence was wrong in principle. It was submitted that the deputy judge had fallen into three errors:

(i)  The starting point, properly computed arithmetically by the application of quantity to guideline, should have been 22 years and 5 months’ imprisonment, rather than 22 years and 4 months’ imprisonment.

(ii)  Whilst expressly acknowledging that the case involved an international element, the deputy judge had failed to enhance the sentence by 2 years’ imprisonment in accordance with Abdallah, so as to arrive at a notional sentence after trial of 24 years and 5 months’ imprisonment; instead he considered that the enhancement for the international element should be between 12 and 18 months’ imprisonment, albeit nearer the upper end of that bracket.

(iii)  The deputy judge failed to explain how he arrived at the ultimate sentence of 22 years and 4 months’ imprisonment. In particular, he did not state by how much the respondent’s sentence was to be reduced for her medical condition. It would seem that the deputy judge must have entirely disregarded the international element, since he made no enhancement at all for this factor.

33.  The applicant accepted that judges must retain an element of discretion in sentencing, but, as explained in Herry Jane Yusuph, transparency in the process and consistency in the outcome demanded that any significant departure from the arithmetically determined starting point should be properly explained. The sentence of 22 years and 4 months’ imprisonment, which was 2 years and 1 months less than the proper notional sentence after trial, was unduly lenient.

34.  By Ground 2, the applicant further complained that the deputy judge attached too much weight to the personal circumstances of the respondent, in particular her medical condition, which for serious offences such as trafficking in a dangerous drug should not constitute effective mitigation. In the present case, the medical evidence adduced revealed that the respondent had had successful surgery before her sentence, and what the deputy judge perceived to be “an obvious psychological and physical blow suffered by the (respondent) as a result of the detection of cancer and its treatment”[26] was unsupported by defence counsel’s submissions, still less by evidence.

35.  Accordingly, the applicant contended that the sentence was manifestly inadequate. Had the approach in Herry Jane Yusuph been correctly applied, the notional sentence after trial would have been at least 24 years and 5 months’ imprisonment. Furthermore, the respondent’s medical condition did not merit a 2-year reduction, which was not a proper exercise of judicial discretion and did not accord with the wider public interest of severe and consistent sentences for drug trafficking.

B.2.2.  The respondent’s application to adduce new evidence

36.  On the respondent’s behalf, Mr Boyton sought to adduce fresh evidence under section 83V of the Criminal Procedure Ordinance, Cap 221 (“the Ordinance”), in the form of a letter issued by the Embassy of Ukraine in Beijing, dated 27 December 2022 (“the letter”), stating that the respondent had been recognised as a victim of human trafficking[27].

37.  Mr Boyton accepted that the credibility of the letter, which would be a pertinent consideration under section 83V(2) of the Ordinance, might be compromised by the fact that the respondent’s status as a victim of human trafficking had never been raised at trial. There were other hurdles to overcome, not least that the request from the respondent for certification of her status was made after, and not before, trial. Mr Boyton acknowledged that too ready acceptance of such evidence would open the floodgates to any foreign national caught with dangerous drugs in Hong Kong. However, he hoped that, at the very least, the letter might serve as mitigation under Step 5 of the approach in Herry Jane Yusuph.

38.  Opposing the application to admit fresh evidence, Mr Lau submitted, firstly, that the assertion that the respondent was a victim of human trafficking was not likely to be credible because it took her more than 3 years after her arrest to instruct her legal representatives in relation to this matter. Secondly, the respondent never gave evidence at trial that she was in any way forced against her will to bring cocaine into Hong Kong: her account was that she voluntarily acceded to the Dimanche’s request to bring the suitcase to Hong Kong, but without realising its contents. Thirdly, there was no reasonable explanation for the failure to adduce the letter at trial, or in mitigation after conviction. The letter would not provide the respondent with any meaningful mitigation as her personal circumstances could not afford her any excuse to commit an offence of such gravity, absent a credible claim of duress, of which there was none. Finally, since Hong Kong was not a signatory to the Palermo Protocol, it was inappropriate to provide a backdoor for its application by way of sentencing policy, which could be abused by drug trafficking syndicates to induce more so-called “victims” of human trafficking to bring dangerous drugs into Hong Kong.

B.2.3.  The respondent’s reply

39.  In response to Ground 1, Mr Boyton pointed out that a sentencing court may go above or below an arithmetically determined starting point[28]. It might have been a simple error on the part of the deputy judge when he miscalculated the starting point by 1 month. However, to adjust it now would be to tinker with the sentence, which should be discouraged.

40.  In response to Ground 2, Mr Boyton contended that the deputy judge was alive to the issue of enhancement for the international element, but chose to exercise his discretion to achieve a fair and balanced sentence under Step 6 of the approach in Herry Jane Yusuph. The difference between the sentence passed by the deputy judge and the one advocated by the applicant was 2 years, representing a reduction of 7.59%, which could not be said to be so unreasonable as to warrant interference by an appellate court[29]. He pointed out that the respondent would be about 50 years of age at the time of her eventual discharge and would be very unlikely to return to Hong Kong to commit further offences.

41.  In any event, even if the Court were minded to accept the review, the respondent should benefit from a discount since it was an application for review. This was particularly so where prosecuting counsel at trial had accepted on the record that the deputy judge was entitled to exercise his discretion in favour of the respondent in respect of her health issue, and expressly took a neutral stance on the matter. To permit the applicant to take a position at variance with that stance upon review would be unfair to the respondent.

C.  Supplemental submissions

42.  At the hearing of the sentence review on 11 January 2023, the Court asked the parties for further submissions on the wider issue of what was meant by ‘international element’ and whether it should remain a valid reason for enhancement. The parties also made submissions as to whether the international element should apply to the type of couriers referred to as “drug mules”.

C.1.  The ‘international element’

C.1.1.  The applicant’s submissions

43.  Although the Court in Abdallah did not specifically define the meaning of the term ‘international element’, it would seem that it had in mind any act of importation or exportation, including trafficking across the border with the Mainland. The terms ‘import’ and ‘export’ are defined in section 2 of the Dangerous Drugs Ordinance as “to bring or cause to be brought into” and “to take or cause to be taken out of” Hong Kong or any other country respectively. Hence, the offence can be committed, inter alia, by physically taking dangerous drugs across the border control points of Hong Kong (“to bring” or “to take out of”) as well as by parcels of dangerous drugs being consigned or sent to Hong Kong from overseas or from Hong Kong to overseas, and being collected or conveyed for that purpose (“cause to be brought into” or “cause to be taken out of”).

44.  On that premise, Mr Lau submitted that the international element is an aggravating factor because it acknowledges the added criminality of introducing more dangerous drugs into Hong Kong’s illicit drug market, thus causing additional harm to society and requiring further resources to combat their introduction and harm[30]; and calling for an extra element of deterrence to be reflected in the sentence. Understood in this way, an international element remains a valid concern in many jurisdictions (namely, the United Kingdom, Australia, New Zealand and Canada) and those courts indeed maintain a distinction between local supply and importation of dangerous drugs.

45.  Accordingly, almost 50 years ago in R v Humberto Ribas[31], Bridge LJ (as Lord Bridge of Harwich then was) explained:

“The view which this Court takes is that Parliament has provided for the smuggling of prohibited drugs to be treated as a category of offence on its own which is separate and distinct from the categories of possessing a drug once it has got into this country, which may be either simple possession or possession with intent (to supply). Up to the maximum penalty of 14 years’ imprisonment, it seems to us the gravity of the smuggling offence depends primarily on the quantity smuggled and secondarily on all other relevant circumstances. But if a large quantity, and a quantity certainly capable of providing a substantial commercial supply is brought into this country in contravention of the statutory prohibition on the importation then, irrespective of any specific intent to put that quantity into circulation, Parliament has provided for it to be treated as a grave offence. Importation, whatever the specific intent of the importer, as was pointed out by Lord Justice Shaw in the course of the argument, involves at the very least the risk that the quantity imported will find its way on to the home market and the object of prohibition on the importation is to protect the home market, and to secure that supplies of these virulent drugs will not be made available there.”

46.  The international element is present, argued Mr Lau, when an offender commits trafficking by importing or exporting through any means, by whatever method. He further submitted that a person who “imports” a dangerous drug when he does so with the requisite mens rea, thus knowing that he is dealing with a dangerous drug and having the intention to bring or cause to be brought into Hong Kong the drug, and must appreciate that an extra quantity of narcotics, if not for his own use, is being brought into the territory for supply to others. It is this culpable intent that justifies the enhancement of sentence. On the other hand, if the offender brings or causes to be brought into Hong Kong dangerous drugs without that requisite mental state, he may not be said to have imported drugs into the territory, hence there is no international element engaged in the offence[32]. Where there is a joint enterprise for the importation or exportation of a dangerous drug, all parties must have shared the same knowledge of the effect of their act. This knowing participation justifies an enhancement of their sentences.

47.  Mr Lau further submitted that while it is an aggravating factor on its own when a foreign national comes to Hong Kong to commit an offence, it is distinct from the international element, which addresses the harm entailed in trafficking. As such, he argued that a person who knowingly takes delivery of a drug-laden parcel and a cross-border trafficker are no different and should be liable to the same enhancement.

48.  He further argued that the enhancement for the international element should be determined chiefly by the weight of the narcotic involved, given that the extent of the harm the importation or exportation entailed is roughly proportional to the quantity being trafficked[33]. This quantitative approach in Abdallah is consistent with that taken in the United Kingdom (as explained by Bridge LJ[34]), in Canada[35] and in Australia[36].

C.1.2.  The respondent’s submissions

49.  Mr Boyton pointed out that there were many factual scenarios to which the label of ‘international element’ could be attached: drug couriers who knowingly carry dangerous drugs across countries or continents; persons who knowingly collect international parcels containing dangerous drugs[37]; and those who order illicit substances online from abroad[38]; even persons who bring drugs across the border for their own consumption[39].

50.  He argued that the present sentencing regime is logically flawed as it pre-supposes that cross-border trafficking is inherently more serious than domestic trafficking, which results in a disparity in sentencing. He proposed that, on a review of cases from various common law jurisdictions, the aggravating factor of the international element is under‑pinned by the commerciality of the drug trade, which features greater illicit profit and greater social harm. Mr Boyton complained that the quantitative approach in Abdallah and Chung Ping Kun for enhancement effectively overlapped with Steps 2 and 3 of the Herry Jane Yusuph approach, which has already taken into account the quantity of the narcotic involved[40].

C.2.  Applicable to “drug mules”?

C.2.1.  The applicant’s submissions

51.  Mr Lau submitted that, while couriers are in the lowest rank of a drug syndicate, they are nevertheless a necessary and important part of any drug trafficking operation. Even the courts in England and Wales have made a distinction between “professional couriers” who import or export drugs regularly for financial gain with knowledge that they are committing an offence on the one hand, and “drug mules” who may have become involved due to a misplaced trust in a family member, friend or acquaintance.

52.  Mr Lau contended that, although in some cases the courier may not know the exact amount of dangerous drug imported or exported, it does not diminish the need for deterrence because the offender knows very well that he is bringing in or taking out an illicit substance for supply to others: see Stanbouli and R v Cunningham[41]. Furthermore, it is always open to the offender to give evidence at trial or by way of a Newton enquiry that he believed the quantity he was carrying was less than it was.

C.2.2.  The respondent’s submissions

53.  Mr Boyton relied on the approaches of overseas jurisdictions (namely, England and Wales, Australia, New Zealand and Canada) to urge the Court to review the current policy which accords little or no weight to the personal circumstances of so-called “drug mules”. He submitted that those jurisdictions rightly recognise the vulnerability of such persons, who have limited decision-making power; who often have no real idea how much dangerous drugs they are carrying or the scale of the operation; and who assume risks far more significant than the reward for which they are prepared to commit the offence. These features, he said, lessen the culpability of “drug mules” and would justify a much lower sentence being imposed.

54.  If the international element is to remain an aggravating feature, Mr Boyton advocated for a judicial discretion not to apply it to “drug mules”, properly so-called, since they are the least culpable of drug traffickers. This, he suggested, would bring Hong Kong into line with other jurisdictions. He further argued that the guidelines for trafficking in dangerous drugs already have built into them a deterrent element; accordingly, a 2-year enhancement was superfluous.

D.  Discussion

55.  As already noted, this Court handed down its decision in Lee Ming Ho on 6 February 2024. To a large extent, the judgment in that case has answered many of the issues that have arisen and been argued in the present two appeals before us.

56.  One of the more significant developments to emerge from Lee Ming Ho is that the Court has cemented its move away from the prescriptive approach in Abdallah (and, correspondingly, in HKSAR v Cheung Ping Kun), where certain identified aggravating factors were regarded as separate elements going to enhance the starting point by defined increments, to a more flexible approach where three of the factors cited in Abdallah are now ordinarily to be considered in the assessment of the role and culpability of the offender.

57.  A central premise of the Court’s decision in Herry Jane Yusuph was that, while many cases will continue to be distinguishable only by the quantities of narcotic being trafficked by the couriers concerned, there are other cases where the role and culpability of the offender (including a courier) may be greater or less, thus warranting a more tailored approach to sentence. It was considered that these assessments are more the province of sentencing judges seized of the facts of a particular case than they are the function of this Court in imposing prescribed enhancements depending on quantity alone.

58.  Once one accepts that there will be cases where the facts differ, leading to different sentences for defendants whose roles and culpability are greater or less than others, then it is no longer productive to consider standard or uniform enhancements for particular aggravating factors depending on whether the quantity is over 1 kilogramme (as in Abdallah), or less than 1 kilogramme (as in Chung Ping Kun). For the facts giving rise to the aggravating factor may be different, which in turn may colour how aggravating the factor is, and how the sentence should, or should not, be enhanced by it. Nevertheless, sentencing judges should remember, in relation to the international element, that the greater the quantity, the more harm is caused by that quantity entering Hong Kong and being disseminated on our streets.

59.  As we said in Lee Ming Ho, the international element is to be considered as part of the assessment of the offender’s role and culpability[42]:

“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. As Zervos JA put the matter in HKSAR v Fong Yau Heung[43]:

‘The courts in Hong Kong have long recognised that the importation of dangerous drugs is a serious aggravation of the offence of drug trafficking because it involves the international smuggling of the quantity of drugs imported finding its way into the local drug market and putting the people and the community at risk of substantial harm.’

Later, he repeated[44]:

‘It is clear from our review of the authorities, that the importing or exporting of drugs is regarded more seriously than the usual dealing of drugs locally. Importing drugs into Hong Kong fuels the local drug market and has serious and deleterious consequences to the people and the community of Hong Kong. Exporting drugs from Hong Kong has the same effect on the receiving jurisdiction which is regarded with the same level of seriousness as if imported in accordance with international comity.’ ”

Quantity must, therefore, still play a role in any enhancement for the international factor.

60.  There can be no denying that the ‘international element’ is an aggravating factor in sentencing in dangerous drugs cases in other jurisdictions and has been part of the sentencing practice in this jurisdiction since before Abdallah was decided 15 years ago. However, as we were at pains to make clear in Lee Ming Ho, the international element is itself capable of taking a number of different forms and may not, therefore, lend itself to a standard or uniform enhancement[45]. The most common example to come before the courts is the courier who, for a fee or reward, crosses the border with dangerous drugs secreted in or on their person or in their luggage. However, there is also the importer who engineers the arrival of an elaborate commercial cargo by land, sea or air deliberately disguised in or as some innocuous shipment. Then there is the recipient of a parcel, which has arrived at the Post Office or a parcel delivery company, and which the recipient knows is both from abroad and contains dangerous drugs[46]. And there is the offender who orders a dangerous drug from abroad, perhaps online through the Internet[47]. These are some of most common permutations of the cross-border trafficking of dangerous drugs encountered in this jurisdiction. But they are not exhaustive categories and even within them, there may be variations and different gradations of seriousness in assessing different roles and culpability.

61.  Whatever form the international element takes in the context of trafficking in dangerous drugs, all offenders have one thing in common: they have each either arranged, or caused or facilitated dangerous drugs to be brought over the border illegally into (or out of) Hong Kong. That is essentially what the international element in the present context means. In other crimes, often involving offences of dishonesty, the international element may also be manifested by the offender coming to Hong Kong specifically with the intention of committing a particular offence[48], often bringing with him the tools necessary to commit that offence[49].

62.  In the context of drug trafficking, however, the international element may be reflected differently in the roles and culpability of individual defendants. There may be a distinction in culpability, for example, between the person who travels across the world with a consignment of dangerous drugs concealed inside his person or luggage, and the offender who knowingly helps his friend to collect a parcel of dangerous drugs posted from abroad at the Post Office or parcel delivery company. Greater culpability may sometimes attach to the person who accompanies or oversees the courier transporting or collecting dangerous drugs.

63.  In HKSAR v Ali Qasim[50], we said:

“27. It seems to us that there is a tangible distinction, for example, between a defendant who, pursuant to the elaborate arrangements of an international syndicate, crosses continents from a foreign country and arrives at Hong Kong International Airport with dangerous drugs secreted within his baggage or person, and a defendant who goes to the Post Office on someone else’s instruction to collect a parcel posted from abroad which he knows contains dangerous drugs. The first defendant can be said to be actually importing dangerous drugs into Hong Kong, while the second defendant is generally aiding and abetting someone else’s act of importation; although, of course, the evidence may sometimes establish that he himself is the importer. Both are plainly guilty of trafficking in dangerous drugs but their culpability may differ.

…

29. Although the present case can properly be said to involve an ‘international element’, the evidence and the jury’s verdict established no more than that he had gone to the Post Office in question for a reward to collect a parcel from abroad, which he knew contained dangerous drugs. The screenshot on his mobile telephone, which he produced to the Post Office staff, contained the tracking details of the parcel in its journey from São Paulo in Brazil to Hong Kong. Such evidence, together with the fact that he was collecting a parcel which he must have known had arrived at the Post Office from abroad, was sufficient to establish the ‘international element’ by way of aiding and abetting the importation of cocaine into Hong Kong. This Court has, on facts very similar to the present case, more aptly characterised such conduct as ‘facilitating the importation into Hong Kong’ of dangerous drugs: see HKSAR v Fitri. However, the ‘international element’ involved, in that case and in this, was in a rather different league from the international courier who himself trafficks dangerous drugs across the border into Hong Kong, whether the drugs are secreted in his person or otherwise in his possession.

30. In distinguishing between these two types of trafficking, we are not to be taken as suggesting that the conduct of a defendant who collects a parcel containing dangerous drugs from a Post Office is necessarily any less serious or culpable than a defendant who carries drugs across the border into Hong Kong. We can envisage circumstances where someone who collects a consignment of dangerous drugs concealed in seemingly innocuous merchandise, which he has organised and made elaborate efforts to disguise and import through legitimate cargo channels, may be just as, if not more, culpable than the person who crosses the border with dangerous drugs secreted in his possession. Much will depend on the facts of the case and the extent of the involvement of the defendant. However, we would caution sentencers that simply because the label of ‘international element’ can be applied to a defendant’s trafficking of a kilogramme of heroin or cocaine narcotic because it has come across the border, and he is connected with the offence, does not automatically mean that he must receive an enhancement of sentence of 2 years’ imprisonment.”

64.  Zervos JA referred to this distinction in HKSAR v SK Wasim[51]:

“37. Macrae V-P also made the point that the collection of a parcel from a Post Office for another person is different from the international courier who himself trafficks dangerous drugs across the border into Hong Kong. He added, however, that in distinguishing between these two types of trafficking, it is not to be taken that the conduct of a defendant who collects a parcel containing dangerous drugs from a Post Office is necessarily any less serious or culpable than a defendant who carries drugs across the border into Hong Kong. He stressed that much will depend on the facts of the case and the extent of the involvement of the defendant.

38. For an international element to be an aggravating factor, it must go to the aggravation of the offence as alleged against the defendant. It is not enough that the dangerous drugs were imported or to be exported at some time, unless it can be shown that it is a feature of the offence for which the defendant has been charged. It can manifest itself in a variety of ways, such as the importation or exportation of dangerous drugs into and out of Hong Kong or the assisting or facilitating such importation or exportation; or the involvement of foreign drug traffickers or members of an international drug syndicate in furthering the drugs trade in or through or out of Hong Kong. Whatever the case, for there to be an international element involved in the offence of drug trafficking, it must be apparent from the facts as found or agreed in the case alleged against the defendant.”

65.  Even within the category of the courier who travels across the world, we have made the point in Lee Ming Ho that[52]:

“…there may be a distinction between the foreigner arriving in Hong Kong for the first time from an impoverished country with a consignment of dangerous drugs, who may not, through naivety or lack of education, fully appreciate the enormity of what he is doing and the appalling consequences of the punishment that will be meted out when he is caught; and the courier from Hong Kong, who journeys across the world to collect a consignment of drugs in order to bring it back to Hong Kong, knowing full well the gravity of his crime and what awaits him when he returns”[53].

66.  In Fong Yau Heung[54], we held that “where a drug is imported for personal consumption, in part or whole, is very much a factor to be taken into account in mitigation of sentence”.

67.  These decisions illustrate what we have said in Herry Jane Yusuph, that “not all couriers and storekeepers may be as culpable as each other, even though they are trafficking in the same quantity of dangerous drugs”[55]. It was for this reason that the Court in Lee Ming Ho explained it has “moved away from a ‘one size fits all’ approach on the basis that every courier is the same to a more nuanced examination by the sentencing judge of role and culpability”[56].

68.  These are matters for the sentencing court to assess on the basis of the facts admitted or presented in evidence and in accordance with any guidance this Court may have given in other appeals. However, it should always be remembered that the offence is trafficking in dangerous drugs: the international element is merely a factor or circumstance in the commission of that offence, albeit one which normally makes the offender’s role and culpability more serious and enhances the starting point for sentence.

69.  We do not accede to Mr Boyton’s general invitation to regard certain “drug mules”, as he has defined them, as falling outside the parameters of sentencing policy in this jurisdiction. Firstly, anyone who brings dangerous drugs across the border is still fuelling the supply of drugs on the streets of Hong Kong with all the terrible consequences they bring for individuals and society, whatever the unfortunate circumstances of their backgrounds and involvement. It is of little comfort to the families and communities whose lives are blighted by dangerous drugs to know that the defendant who brought the drugs into Hong Kong had financial problems, which drove him to commit such a serious crime against the citizens of another country.

70.  Secondly, a “drug mule” is still a drug trafficker who falls to be sentenced, having already been found guilty, or pleaded guilty, to knowingly trafficking in dangerous drugs. When such a trafficker travels across continents and borders, often following an elaborate itinerary, knowing he has dangerous drugs secreted in his luggage or in, or on, his person, we cannot accept that he does not fully understand what he is doing or what the consequences will be if he is caught; particularly in this part of the world. Drugs are a world-wide scourge and it defies belief that there are people in the world who do not realise the appalling risks they are taking when they knowingly ingest dangerous drugs, or secrete them on or in their person or in their luggage, to be carried across the world, or the consequences if they are caught before, during or after they have embarked on their journey. However, if there is any doubt that a particular defendant may not know what, if anything, he is carrying, or if he may have been the subject of duress, he will not be guilty and the question of sentence does not arise. That is what trials are for, and why the courts have devised and refined elaborate directions over the years for judges and juries in cases where possession and knowledge are in question, or where duress is an issue.

71.  Thirdly, it is a matter for the courts of Hong Kong how they determine their own policy for combatting drug trafficking in this jurisdiction. As was pointed out in Kilima Abubakar Abbas, Hong Kong has been working out its own guidelines in respect of trafficking in dangerous drugs for more than 40 years and rather longer than most other jurisdictions[57]. Noting that sentencing policy will vary from country to country, it was also said in Kilima Abubakar Abbas that[58]:

“70. In the context of Hong Kong, sentencing practice and policy will also have to reflect the fact that this is a city with its own legal system, whilst nevertheless part of a large country with a different legal system; and it will, as a matter of comity, want to bear in mind the attitudes of its neighbours to particular crimes and the seriousness with which those crimes are regarded by its neighbours.

71. Since the scourge of drug trafficking is a world-wide problem, it can sometimes be useful to look at the way other countries choose to tackle the problem. However, each country will shape its own approach to suit its own conditions, the desires of its own people, its attitudes to punishment as well as the particular manifestation of the problem in its respective community.”

72.  Having said that, we do recognise that very occasionally there may be a defendant who, for one reason or another, perhaps because of physical or mental disability, infirmity or frailty, or because he has been genuinely scammed or tricked, becomes involved in a crime from which he then finds it difficult to extricate himself. Such a defendant comes to realise at some late stage what is required of him but nevertheless carries on with his part in the crime knowing what he is doing, however reluctantly, but in circumstances falling short of duress.

73.  Judges will approach such cases, when they arise, with realism, fairness and common sense, in the knowledge that such claims are very easy to make after a defendant has been caught but less easy to substantiate. What we would expect, as a minimum, where such circumstances are advanced is an immediate full and frank explanation by the defendant to the relevant authority upon arrest as to how he came to be involved; and the existence of other evidence suggesting that the defendant became unwittingly ensnared and reluctantly involved in the commission of the offence, from which he found it difficult to extricate himself. Such claims will normally follow a plea of guilty. If such evidence is lacking, the defendant should be expected to give evidence and be cross-examined on his contention and the circumstances which caused him to commit the offence at a Newton hearing.

74.  Neither the applicant nor the respondent come anywhere near this rare category of circumstance. Both pleaded not guilty, but were found guilty after trial by their respective juries. The claim of the applicant in CACC 32/2020 that he was tricked by Chandru into believing that he was carrying gold rather than almost 3 kilogrammes of “Ice” and , therefore, had no idea that he was carrying dangerous drugs until he was stopped by Customs officers was unanimously rejected by the jury. If his defence had been regarded by the jury as possibly true, he would have been acquitted and the question of sentence would not have arisen. It is clear to us from the evidence that the applicant knew exactly what he was doing from the outset and was a willing participant throughout, even assuming the genuineness of his claim to be discharging a debt to a childhood friend.

75.  As for the respondent in CAAR 2/2022, her defence was, as the deputy judge reminded the jury, “that she was totally taken in, blinded by love and desire”[59]; “that she was being shamelessly manipulated by Dimanche”, whose communications with the respondent were “not just insincere, but were a manipulative sham”[60]; and that “[t]his was a woman who fell hook, line and sinker in love with a man who was clearly manipulating, a man she had never met, and suspended all her faculties of reason and judgment that you might expect somebody with her intelligence, maturity and knowledge to have”[61].

76.  The jury unanimously rejected the fact that a woman, who was 35 years of age at the time of the offence and a professional epidemiologist, would travel across the world for someone she had never met but professed to be in love with; and continue to travel and carry things for him despite her own suspicions, and notwithstanding that he had failed to meet up with her on three previous occasions in Cape Verde, Doha and Sri Lanka. We are not in the least surprised the jury rejected the respondent’s evidence. As for the information that the Embassy of Ukraine appears to have accepted that the respondent is a victim of human trafficking, this matter was never raised at trial nor during sentence. It only emerged as an ‘issue’ for the first time more than three years after her arrest, and about a year after her conviction. On what basis the Embassy of Ukraine apparently accorded the respondent such a status is not satisfactorily explained, since it was never the respondent’s case at trial that she was forced into carrying the bag for Dimanche: her case was that she voluntarily did so because she was in love with him, however misguided she may now believe or claim her affections to have been. However, the jury must have resolutely rejected the notion that she did what she did because she was the victim of a ‘love scam’; and having rejected her evidence, the jury must have been satisfied that the respondent knew exactly what she was doing.

77.  For the sake of completeness, we were not impressed by the introduction of an unsigned letter purportedly emailed from the Embassy of Ukraine in Beijing directly to counsel in Hong Kong asserting that the respondent was a victim of human trafficking, without any explanation or basis for the assertion, and about a year after her conviction, when there was no reason for such a letter not to have produced and the whole issue raised during the trial, when it could have been dealt with and assessed in evidence. Although we admitted its contents on a de bene esse basis, it did not meet the stringent requirements of section 83V of the Criminal Procedure Ordinance, and would not have affected the sentence.

E.  Disposal of the appeals

E.1.  CACC 32/2020

78.  The sentence on the applicant was within the acceptable range for someone who had trafficked in 2,956 grammes of “Ice” across the border into Hong Kong. The quantity viewed arithmetically could have merited a starting point of 24 years and 10 months’ imprisonment if the drug concerned had been heroin or cocaine, under the guidelines in Abdallah. Given that the court was dealing with nearly 3 kilogrammes of “Ice”, where there was an additional international element of bringing the dangerous drugs over the border into Hong Kong, the sentence of 26 years’ imprisonment was appropriate to the applicant’s role and culpability in the offence. The appeal is, accordingly, dismissed.

E.2.  CAAR 2/2022

79.  The respondent was convicted of knowingly trafficking in 1,080 grammes of cocaine narcotic. The respondent cannot complain about the judge’s starting point of 22 years and 4 months imprisonment, which was appropriate within the relevant sentencing band of 20 to 23 years’ imprisonment for between 600 and 1,200 grammes of narcotic, as set out in Abdallah. As for the aggravating feature of the international element, for which the judge said he would have adopted an enhancement of somewhere close to 18 months’ imprisonment[62], this enhancement was effectively offset by the judge in light of the mitigation that the respondent had undergone a hysterectomy, as a result of a diagnosis during her detention that she was suffering from cancer of the uterus. Of these two competing influences on sentencing, the judge voiced his dilemma, to which we have earlier referred[63].

80.  Nevertheless, we think the judge was generous in the outcome, although the discretion in sentence was his to exercise within proper boundaries. However, we are now confronted with the position as it is today, the respondent having undergone major surgery, for which we understand she is still receiving follow up treatment. Whilst the respondent’s sentence could have been greater, we are not disposed to alter the sentence now, almost 5 years after her arrest. We are particularly conscious of the fact that the prosecution’s stance during mitigation, when specifically asked to state its position by the judge, was that it was “neutral” as to whether the judge could take the respondent’s medical condition and her associated anxiety into account in sentence.

81.  The simplest course for us in the circumstances was to dismiss the application, notwithstanding that we found the deputy judge’s sentence to be lenient. Accordingly, the respondent’s sentence will remain at 22 years and 4 months’ imprisonment.

E.3.  Step 6 of Herry Jane Yusuph

82.  Finally, in advancing his submissions on behalf of the respondent, Mr Boyton relied on the sentences passed by Deputy Judge McWalters in eight other cases at first instance for the proposition that a judge has a residual discretion under Step 6 of Herry Jane Yusuph to reduce the appropriate sentence he considers it will be a crushing sentence. All of those cases[64] (and others where the judges have purported to follow Deputy Judge McWalters’ approach in this regard) have already been the subject of criticism by this Court in Lee Ming Ho, at [86]. We do not need to say anything more about them, except that the deputy judge’s understanding expressed in them as to what was said and meant by the application of Step 6 in Herry Jane Yusuph was not correct and should not be cited or relied upon again.

E.4.  Orders

83.  In the result, the application for leave to appeal against sentence by the applicant in CACC 32/2020 is refused and the appeal is dismissed. The application to review the sentence of the respondent by the Secretary for Justice in CAAR 2/2022 is also dismissed.

Ms Florrie Chan SPP, of the Department of Justice, for the Respondent in CACC 32/2020 (on 27 May and 27 October 2022 and 9 March 2023)

Mr Derek Lau SADPP(Ag) and Ms Katie Fong PP, of the Department of Justice, for the Respondent in CACC 32/2020 (on 16 August 2023) and the Applicant in CAAR 2/2022

Mr David Boyton and Ms Athena Cheung, instructed by King & Company, assigned by the Director of Legal Aid, for the Applicant in CACC 32/2020 (re: Sentence) (on 16 August 2023)

Mr David Boyton and Ms Peggy Pao (on 16 August 2023 only), instructed by Boase Cohen & Collins, assigned by the Director of Legal Aid, for the Respondent in CAAR 2/2022

The Applicant appeared in person in CACC 32/2020 (re: Sentence) (on 27 May and 27 October 2022 and 9 March 2023)