HKSAR v. Yu Fei

CACC000152/2000

CACC 152/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 152 OF 2000

(On Appeal from DCCC No.391 of 1999)

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Coram: Hon Leong & Wong JJA in Court

Date of Hearing: 6 September 2000

Date of Judgment: 6 September 2000

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J U D G M E N T

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Wong JA:

1. The applicant pleaded guilty before Pang J in the Court of First Instance to one count of possession of 1 1/2 ounce or 42.6 grammes of a dangerous drug commonly known as "Ice". He was sentenced to imprisonment for a period of 22 months. Against this sentence, he applies for leave to appeal on the ground that the starting point of 4 years adopted by the judge was too high which resulted in the sentence imposed on him manifestly excessive.

2. The facts are very simple. The applicant and his girlfriend were consuming "Ice" inside a room in a guest house when two police officers raided the premises. The "Ice" was found in the room and the applicant admitted that the dangerous drug belonged to him.

3. The judge adopted a starting point of 4 years. He gave a discount of 1/3 for the guilty plea and allowed a further discount of 10 months for assistance to the ICAC in connection with another case. This was how the sentence of 22 months was finally arrived at.

4. Mr Paul Leung, who appears for the applicant, referred in his written submissions to a number of cases decided by this Court.

5. In HKSAR v. Chan Yat-sing Cr. App. No.777 of 1997, a sentence of 5 years imposed on the appellant involving 95.36 grammes of "Ice" was reduced to 3 1/2 years. The appellant was charged with trafficking but was found guilty of simple possession by the jury.

6. In HKSAR v. Lau Chi-chiu Cr. App. No.395 of 1998, a sentence of 3 years for simple possession of 63.38 grammes of "Ice" was reduced to 2 years. There was a plea of guilty.

7. In HKSAR v. Lai Kam-sang, a sentence of 2 years and 8 months imposed on the appellant for possessing of 26.61 grammes of "Ice" was reduced to 10 months. The appellant changed his plea of not guilty to one of guilty after two days of a voir dire hearing.

8. In HKSAR v. Wan Sheung-sum, CACC 438 of 1999, a sentence of 32 months imposed on the appellant for simple possession of 34.33 grammes of "Ice" was reduced to 14 months.

9. The decision in HKSAR v. Chew Sik pok, CACC 502 of 1998 was cited in Wan Sheung-sum. In that case the conviction for trafficking of 24.12 grammes of "Ice" was substituted with a conviction of simple possession. The original sentence of 7 years and 9 months was quashed and replaced by a sentence of 16 months.

10. Mr Cheung Wai Sun, who appears for the Respondent before us, very properly concedes that the starting point adopted by the judge is far too high. He submits that the sentence for the offence of simple possession should be one of 18 months and this sentence is to be enhanced by another 12 months because of the latent risk factor, thereby bringing the sentence to 30 months.

11. Mr Paul Leung for the applicant agreed with this submission. In the circumstances, we would quash the sentence imposed by the judge and replace in its place a sentence of 30 months. The sentence would be reduced by a 1/3 discount for the guilty plea and further reduced by another 10 months for the applicant's assistance to the ICAC, resulting in a sentence of 10 months' imprisonment.

12. In the result, we would grant leave. Treating the application as the hearing of the appeal, we allow the appeal to the extent indicated.

Representation:

Mr Cheung Wai Sun, DPGC, of the Department of Justice, for the Respondent

Mr Leung Chiu Lam, Paul, assigned by Director of Legal Aid, for the Applicant