Read the full judgment text of CACC 273/2017 on BabelCite. This Court of Appeal judgment was delivered on 17 January 2018 before McWalters JA.
Criminal law – trafficking in dangerous drug – methamphetamine hydrochloride (Ice) – sentence – appeal – whether judge erred in finding only part of drugs was for self-consumption – whether starting point too high – whether discount for self-consumption too low – arithmetic starting point approach – applicant stopped at Lo Wu Control Point with 5.33 grammes of crystalline solid containing 5.26 grammes of Ice, estimated value HK$1,785.55 – applicant pleaded guilty – sentencing judge adopted starting point of 5 years 6 months, allowed 6 months (9.1%) for self-consumption of 1.99 grammes in one opened packet (37.8% of total), and applied one-third reduction for guilty plea, yielding 3 years 4 months – whether the judge erred in concluding that only one packet was for self-consumption – held, not reasonably arguable that the judge erred in either her application of the relevant legal principles or her analysis of the facts, given applicant's failure to give evidence and the travel movement record casting doubt on the claim – whether the starting point was too high – held, on the arithmetic starting point approach endorsed by the Court of Appeal, the proper starting point was 5 years 1 month, so the adopted 5 years 6 months was on the high side – whether the discount for self-consumption was too low – held, under HKSAR v Chow Chun Sang, where a significant proportion of drugs is for self-consumption, a discount of 10% to 25% should be awarded, so 9.1% was arguably too low for 37.8% of the total – leave to appeal granted on the starting point and discount grounds, refused on the self-consumption finding ground – legal aid certificate granted for appeal hearing – sentencing math: starting point 5 years 6 months; minus 6 months (9.1%) for self-consumption; minus one-third for guilty plea; final 3 years 4 months; arithmetic starting point 5 years 1 month; self-consumption discount should be at least 10%.
Legal issues: Whether the judge erred in finding only one packet was for self-consumption · Whether the starting point of 5 years 6 months' imprisonment was too high · Whether the 9.1% discount for self-consumption was too low
Outcome: Leave to appeal against sentence granted on the grounds that the starting point was too high and the percentage discount for self-consumption was too low; leave refused on the ground that the judge erred in finding only one packet was for self-consumption. Legal aid certificate granted to the applicant for the appeal hearing.
Cited by 1 case · Cites 2 cases