Hong Kong Case Law: Decisions & Judgments

Topic

Latent risk in sentencing

Legal area

Court

15 Feb 2013

HKSAR v. MINNEY, JOHN EDWIN

Citation

HKSAR v. MINNEY, JOHN EDWIN
Court

Court of Final Appeal
Case number

FACC2/2012

It is lawful for a sentencing court to take into account the real latent risk that possessed drugs may be redistributed to others and to enhance the sentence accordingly provided the risk is established from the circumstances, the accused is given fair opportunity to meet the issue, and the court does not sentence as if for trafficking or attribute an unproven intention to traffic; applying that principle, the Court dismissed the appeal and affirmed the sentences.
16 Jun 2011

HKSAR v. MINNEY, JOHN EDWIN

Citation

HKSAR v. MINNEY, JOHN EDWIN
Court

Court of Appeal
Case number

CACC383/2010

The latent risk principle does not offend the presumption of innocence where the sentencing court enhances sentence to reflect a real risk of dissemination disclosed by the circumstances of possession rather than imputing an intention to traffic; applying that principle, the judge lawfully increased the starting points by three months and the sentences were appropriate and upheld.
22 Mar 2002

HKSAR v. NG HUNG CHI

Citation

HKSAR v. NG HUNG CHI
Court

Court of Appeal
Case number

CACC186/2000

The Court set aside the trafficking conviction and substituted a conviction of possession. Having obtained the s54A report, the Court sentenced on the basis that this was possession by storage of a very large quantity under the appellant's exclusive control; the appropriate sentence is a starting point of three years for possession plus a further three years for the substantial latent risk of trafficking, producing a substituted sentence of six years' imprisonment.
22 Mar 2000

HKSAR v. LEE YUE HO

Citation

HKSAR v. LEE YUE HO
Court

Court of First Instance
Case number

HCMA719/1999

The Court held the magistrate did not err in principle or in fact: it was permissible to consider the inherent potential of the false valuation documents within the appellant's commercial transactions; the magistrate properly considered mitigation and suspension and legitimately concluded that only a custodial sentence was justified; the concurrent five‑month terms were not excessive.
23 Mar 1999

HKSAR v. LAI KAM SANG

Citation

HKSAR v. LAI KAM SANG
Court

Court of Appeal
Case number

CACC578/1998

The trial judge erred by selecting a starting point above the accepted range for simple possession and by doubling the sentence for latent risk given the relatively small quantity; correct method is to adopt a starting point within the 1–18 month range (here 18 months), add a proportionate latent risk enhancement (12 months) and then apply the one-third guilty plea discount resulting in a 20 month sentence.
13 May 1998

HKSAR v. CHENG WING KIN

Citation

HKSAR v. CHENG WING KIN
Court

Court of Appeal
Case number

CACC14/1998

The Court held that, given the near 10 grammes total quantity, the defendant's inconsistent statements and the DATC report casting doubt on genuine remorse, the latent risk principle justified the starting point and a two year global sentence (with plea discount applied) was not manifestly excessive; appeal refused.
10 Feb 1995

R. v. LEE SIU LUNG

Citation

R. v. LEE SIU LUNG
Court

Court of Appeal
Case number

CACC529/1994

The judge erred by indicating he accepted that some of the seized drugs were for a purpose other than personal consumption and sentencing on that basis; while latent risk may be considered, it cannot be used to effectively treat a simple possession case as trafficking, therefore the sentence on the first count was excessive and was reduced on appeal.

Hong Kong Case Law

HKSAR v. MINNEY, JOHN EDWIN

HKSAR v. MINNEY, JOHN EDWIN

HKSAR v. NG HUNG CHI

HKSAR v. LEE YUE HO

HKSAR v. LAI KAM SANG

HKSAR v. CHENG WING KIN

R. v. LEE SIU LUNG