Read the full judgment text of CACC 190/2017 on BabelCite. This Court of Appeal judgment was delivered on 25 July 2018 before Macrae VP, McWalters JA.
Criminal law – sentencing – trafficking in dangerous drugs – methamphetamine hydrochloride (Ice) – 979.11 grammes – guilty plea – assistance to authorities – discount for cooperation – whether 40% discount sufficient – whether defendant who would have testified for prosecution but was prevented by co-accused's guilty plea entitled to greater discount – Dangerous Drugs Ordinance Cap 134 s.4(1)(a) and (3) – material facts: applicant intercepted at Lok Ma Chau Control Point carrying 979.11 grammes of Ice, immediately informed Customs of D2's location enabling his interception and seizure of 1.94 kilogrammes of Ice, cooperated in controlled delivery which came to nothing, pleaded guilty in magistracy – first issue: whether judge erred in awarding only 40% discount for assistance in apprehending D2 – held: yes, judge was led into error and assistance in apprehending D2 was not properly considered – second issue: whether defendant prevented from testifying by supervening event of co-accused pleading guilty falls within 40%-50% discount range – held: yes, following Z v HKSAR, R v Tam Yiu Chung, R v Yan Im Kun, HKSAR v Ng Shek Yu, HKSAR v Tso Kin Hong, HKSAR v Yau Kwok Yin, HKSAR v Cheng Weiguang and HKSAR v Herrera Jhorman, such defendants fall within 40%-50% range, with case-by-case assessment – third issue: procedural duty of prosecution and Director of Legal Aid to explore prosecution witness option at committal stage – held: DPP and DLA urged to explore these possibilities in appropriate cases given the timing pressures created by HKSAR v Ngo Van Nam – outcome: appeal allowed, sentence reduced from 14 years 2 months to 13 years 4 months representing approximately 43.5% discount from starting point of 23 years 8 months
Legal issues: Sufficiency of 40% sentencing discount for assistance in apprehending co-accused · Discount for willing prosecution witness prevented from testifying by supervening event · Procedural duty to explore prosecution witness status during plea negotiations
Outcome: Application for leave to appeal against sentence allowed; original sentence of 14 years and 2 months set aside and replaced with 13 years and 4 months' imprisonment
Cited by 44 cases · Cites 9 cases