HKSAR v. Yu Chi Pang

HCCC 421/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 421 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The 29-year-old defendant has before me, on what was to be his first day of trial, pleaded guilty to a charge of trafficking in 137 grammes of ketamine.

The facts of the offence are straightforward. He was observed coming out of premises in San Po Kong, Kowloon, by police on an anti-drug patrol. His behaviour led them to intercept and search him. In his jacket pocket was found a resealable plastic bag containing the ketamine. In another pocket of the jacket, was found an electronic scale and 10 small resealable plastic bags.

Given the amount of drug and the nature of that drug, I take a starting point of sentence of 7 years’ imprisonment. There are no aggravating factors. The only mitigation of substance available to the defendant is his plea of guilty.

The defendant’s counsel had informed this court of the defendant’s intention to plead guilty by way of her letter dated 8 September last, some two months ago. Some nine months earlier, on 2 December 2015, the case had been set down for a trial commencing today, 10 November 2016. The indication by the defendant that he intended to plead guilty to which I have just referred, took place by a letter from his counsel dated 8 September 2016, sent to the Registrar of this court.

That letter was dated only six days after the Court of Appeal’s judgments in HKSAR v Ngo Van Nam, CACC 418/2014, and HKSAR v Abdou Maikido Abdoulkarim, CACC 327/2015. If the principles of those judgments were strictly applied to the facts of this case regardless of chronology, then the discount afforded to the defendant for his plea of guilty would be somewhere between 20 and 25 per cent from the starting point of sentence. In that regard, the Court of Appeal in Ngo, per Lunn VP, at paragraph 214 said:

“We are satisfied that, subject to the overriding discretion of the judge in sentencing, the range of discount to be afforded to a defendant who indicates to the Court or the prosecution that he intends to plead guilty after trial dates have been fixed but before the first day of trial, lies between the 25% discount to be afforded to the defendant who indicates that he wishes to plead guilty up to and until dates are fixed for his trial by the Listing Judge and the 20% discount to be afforded to the defendant for a plea of guilty on the first day of trial. In determining the appropriate discount to be afforded to the defendant in those circumstances, the judge will have regard to the time at which the indication was given and to all the other relevant circumstances.”

Obviously, before the handing down of those judgments on 2 September last, the present defendant would, on the facts of this case, have been entitled to a full one-third discount of sentence on his plea of guilty regardless of it occurring on the first day of trial, and that would be particularly so in this case, given that the defendant’s intention to plead guilty was notified to the Registrar some two months before the first day of his trial. The defendant’s position is allowed for in the judgment of Lunn VP at paragraph 236 of Ngo. There, this was said relating to cases which were already in the court system:

“The revised practice of affording discounts of sentence for pleas of guilty is to be applied only to those who, in future, reach the stages in criminal proceedings identified in this judgment at which revised discounts of sentence for pleas of guilty are identified. So for example, the revised practice applies to a defendant currently in the magistracy who, in the future, is committed to the Court of First Instance for trial. On the other hand, for example, a defendant in respect of whom trial dates have been fixed in the Court of First Instance who pleads guilty on the first day of his trial is to benefit from the existing practice of affording a discount of one-third from that taken as a starting point for sentence.”

In my view, in this present case, simple fairness requires that the final sentence of that paragraph be applied. A change in approach to sentencing which occurred after this case had been listed for trial but where the defendant, through his counsel, promptly responded to that change within four working days from the handing down of the judgments of Ngo and Abdou at 4.30 pm on Friday, 2 September, requires that he, in the circumstances, be allowed the full one-third discount.

That is because the defendant’s action in delaying his plea of guilty, or at least delaying his decision in that regard was prior to the change in sentencing practice on 2 September 2016, entirely consistent with him qualifying for the full one-third discount, even if he had entered his plea of guilty on his first day of trial, and there is no doubt that he was entitled to that expectation as the law previously stood.

Accordingly, in my view, the defendant’s timely response to the change in our sentencing practice as brought about in the two cases of Ngo and Abdou is, in the circumstances of this case, to be treated as tantamount to an early plea of guilty.

For that reason, I discount the starting point of sentence of 7 years’ imprisonment by one-third and the defendant is sentenced to 4 years 8 months’ imprisonment.