R. v. Kwong Kai Him

CACC000403/1995

IN THE COURT OF APPEAL

1995, No. 403
(Criminal)

-------------------

Coram: Nazareth, V.-P., Bokhary and Liu, JJ.A. in Court

Date of Hearing: 29 March 1996

Date of Judgment: 29 March 1996

----------------------

J U D G M E N T

-----------------------

Bokhary, J.A.:

1. On May 30 last year, this applicant pleaded guilty before Saied J of trafficking in 1,010.59 gms of a mixture containing 284.35 gms of heroin hydrochloride, and was sentenced to 10 years' imprisonment.

2. He now seeks leave to appeal against that sentence.

3. The judge took a starting point of 13 years. No complaint is made against that starting point.

4. What the applicant, represented by Mr Adams, complains about is the discount which the judge gave for his guilty plea, namely three years.

5. In passing sentence, the judge concluded by saying:

"My starting point is 13 years, and for his plea of guilty, but taking into account also that he was caught red-handed, I am sentencing him to 10 years imprisonment."

6. The sole ground of appeal advanced is that the 10-year term imposed:

".... was manifestly excessive for the reasons that the learned Trial Judge failed to give the Applicant a sufficient discount in sentence for his plea of guilty and placed emphasis upon the Applicant being "caught red-handed."

7. Mr Adams submits that a sentence of between 81/2 to 9 years would have been appropriate. That would have involved giving pretty much the full now common one-third discount for a guilty plea.

8. There may be cases in which the fact that the man was caught red-handed would justify something less than a third, but certainly not much less than a third. The present case is one of a man being caught with dangerous drugs in his possession. Catching him red-handed is the only way in which to catch him. And it is notorious that if an accused alleges that the drugs were planted on him, a simple case can result in a fairly lengthy trial.

9. In a case such as this, pretty much a one-third discount is appropriate across the board. All things considered, we think that this sentence ought to be reduced to nine years. And treating the application for leave to appeal as the appeal itself, we allow that appeal to reduce the sentence from 10 years to nine years.

Representation:

Mr P Cantrill (of the Attorney General's Chambers) for the respondent

Mr Nicholas Adams (instructed by M/s Kwan & Kwan) for the applicant