HKSAR v. Chan Chi Wah

CACC 250/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.250 OF 2004

(ON APPEAL FROM DCCC 160 of 2004)

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BETWEEN

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Date of Hearing:   27 October 2004

Date of Judgment:  27 October 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.The applicant, aged 44, was convicted on 20 May 2004, following a trial in the District Court before Judge W. Wong, on a charge of trafficking in a mixture containing 18.07 grammes of heroin hydrochloride with a street value of $9,800.  He was sentenced to five and a half years’ imprisonment against which he now seeks leave to appeal.

2.In short, the facts were that the applicant was seen by police officers walking in Reclamation Street, Yau Ma Tei, in a furtive manner.  When stopped and searched, a packet was found in his underpants which contained eighty other small packets containing the drugs which were the subject of the charge.  The applicant indicated that the drugs were intended for his own consumption.

3.All the facts were admitted.  The sole issue at trial was concerned with whether the applicant had been trafficking or, as the defence suggested, had the drugs for his own use.

Ground of appeal

4.Mr Ross, on the applicant’s behalf, advanced a sole ground of appeal alleging that the sentence was manifestly excessive because the judge had “failed adequately to take into account mitigation that the applicant agreed to the prosecution case and gave no evidence nor called any witnesses in his defence”.

5.The applicant has nine previous convictions, none of which is for an offence related to drugs.

6.Mr Ross made no suggestion that the starting point taken by the judge was inappropriate.  He submitted, however, that by virtue of the discount of 25% awarded by the Court of Appeal to the appellant in HKSAR v Mak Shing, CACC 322/2001 (unreported), where the defence was “confined to legal arguments as to whether (the appellant) could avail himself of the saving provision of section 25” of the Organised and Serious Crimes Ordinance, Cap. 455, the same principle should apply in the case presently before us.

7.It is of course true that on occasion discounts are given where a substantial part of the prosecution’s case has not been contested and there has been an appreciable saving in time.  Obvious examples of this will be found in large fraud cases and where breaches of copyright are alleged.  This will always be dependent on the particular circumstances of the case in question.  Here, the trial was straightforward and very little time would have been saved.

8.We cannot agree, therefore, that the applicant was deserving of any discount on his plea of not guilty.  The applicant had shown no remorse and the case against him was overwhelming.  By confessing to his possession of the heroin, he was merely seeking to avoid the much heavier sentence which was bound to be imposed for trafficking.

Conclusion

9.The application is dismissed.

Mr Gavin Shiu, SADPP, of the Department of Justice, for the Respondent.

Mr Philip Ross, instructed by Director of Legal Aid, for the Applicant.