HKSAR v. Wai Kin Shing

CACC000505/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.505
(Criminal)

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Coram: Hon. Power, Ag. Chief Judge, H.C., Mayo & Stuart-Moore , JJ.A.

Date of Hearing: 20 February 1998

Date of Judgment: 20 February 1998

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J U D G M E N T

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Power, Ag. Chief Judge, H.C. (giving the judgment of the Court):

1. The applicant faced one count of trafficking which alleged that on 18th January 1997, in the departure lounge of Kai Tak International Airport, he unlawfully trafficked in 1,743.85 grammes of a mixture in the form of 14 blocks containing 1,326.67 grammes of heroin hydrochloride. He pleaded guilty to that count and was sentenced to imprisonment by Deputy Judge Suffiad for 17 years. He now seeks leave to appeal against that sentence.

2. When sentencing, the trial judge said:

"You have pleaded guilty in the Magistrates Court to trafficking in dangerous drugs ..............

The facts which were admitted by you show that you were seen by police officers at the Kai Tak Airport, and when approached by police officers and searched, this heroin, contained in some 14 blocks, were found strapped to your body and thighs.

I have heard what your counsel has said in mitigation on your behalf, and from what he has told the court this morning, it appears that you well realised the tremendous risk you were taking in undertaking this venture, but nevertheless you undertook this venture, no doubt because you were tempted by the offer of $80,000 promised to you."

He went on to say:

"I accept that in your case you had made a clean breast of things to the police when you were first arrested, and you had pleaded guilty at the earliest available opportunity, and I've also taken into account that you are 27 years of age.

Based on the amount of the narcotics in this case, 1,326.67 grammes of heroin hydrochloride, I will use the starting point of 25 years. That is a starting point to be used if your case had been one which went to trial, and that a conviction resulted after trial.

In view of your early plea of guilty, your age and the fact that you had made a clean breast of things to the police when interviewed, I will discount that to 17 years, and you will be sentenced to a term of imprisonment for 17 years."

3. The judge clearly took into account the matters which he should have, that is that the applicant had immediately admitted the offence, that he had from the very outset been prepared to plead guilty, and that he was aged 27 and was tempted into the course of criminal conduct by the offer of $80,000 from those behind the trafficking. He took a starting point of 25 years relying upon the guidelines set down by this court in Lau Tak Ming. Those guidelines indicate that 600 grammes will attract the sentence of 20 years. The applicant had three times that amount. He was, moreover, engaged in international trafficking. His entitlement after plea was to a one-third discount but the judge, gave him slightly less than that discounting from 25 years to 17. We are not assisted by reference to other sentences placed before us by the applicant and his suggestion that offenders in other cases have received more lenient sentences. Each case depends upon its own facts and mitigating circumstances.

4. The full one-third discount would have been eight years and four months, which would have reduced the sentence to one of 16 years and 8 months.

5. The sentence, leaving aside the question of discount, was neither wrong in principle nor excessive. The starting point of 25 years was merited given the seriousness of the offence and, in particular, that international trafficking is involved.

6. The only matter which concerns us is whether the applicant was entitled to be given the full one third discount. This court has said on a number of occasions that if a judge is not, in circumstances where it appears that an applicant is entitled to a one-third discount, prepared to give that discount, then he must give his reasons for not so doing. There has been no reason given in the present case and we can see no reason why the applicant should be deprived of the benefit of a full discount.

7. That being so, the application will be allowed. This hearing will be treated as the hearing of the appeal and the sentence will be varied from 17 years to one of 16 years and 8 months.

Representation:

Mr. David Leung, S.G.C. (D.P.P.) for the Respondent.

Applicant in person.