HKSAR v. Wong Kwong Yin

[English Translation – 英譯本]
CACC 209/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 209 OF 1997

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BETWEEN

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Before: Hon Chan CJHC, Leong & Yeung JJ

Date of Hearing: 20 November 1997

Date of Judgment: 20 November 1997

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Judgment

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Hon Yeung J (delivering the judgment of the Court):

1. The applicant Wong Kwong Yin pleaded guilty, before the District Court, to a charge of trafficking in dangerous drugs and was sentenced to 5 years’ imprisonment.  He now seeks leave to appeal against the sentence.

2. The facts of the case were that at the time of the offence, the applicant was hanging about in the vicinity of a tennis court in Bowen Drive.  When police officers intercepted him, he tried to escape.  He was arrested, and the police officers found from his trousers pocket four packets of dangerous drugs weighing 33.45 grammes in total and containing 32.7 grammes of heroin base.  The applicant had more than ten previous convictions, most of which were drug related and the rest were for minor theft offences.

3. Whilst the applicant was on bail in respect of this case, he committed another drug trafficking offence which involved 4.47 grammes of heroin base.  That case was tried in the Eastern Magistracy and the applicant was sentenced to 1 year and 4 months’ imprisonment.  The trial judge in this case ordered that the sentence of 5 years’ imprisonment above was to run consecutively to the sentence of 1 year and 4 months’ imprisonment.

4. In considering sentence, the trial judge noted that the applicant had numerous previous convictions and was addicted to dangerous drugs.  He could barely take care of himself and yet he brought his wife and two daughters to Hong Kong.  He neglected his duty as husband and father, so much so that the family had to live on public assistance, and this, the trial judge said, was an aggravating factor.  Here the trial judge was merely trying to point out the irresponsible attitude of the applicant towards his family and society, and this had not led to an increase in sentence.  This point is therefore not significant for present purposes.

5. On the basis of the amount of heroin base involved, the trial judge adopted a starting point of 6 years.  He took into consideration the applicant’s plea of guilty and reduced the term to 5 years.  He pointed out that “the reduction from 6 years to 5 years means that the discount was slightly less than 30%”.  We see nothing improper in adopting a starting point of 6 years, but the trial judge was wrong in saying that the applicant received a discount of almost 30% for his plea of guilty.  As a matter of fact, the reduction from 6 years to 5 years merely represented a discount of slightly more than 15%.

6. In our view, for defendants who plead guilty, the court certainly has a discretion over the discount to be given.  However, unless there are special circumstances, the discount should as a general rule be close to 30% and not too far from it.  Although the applicant in this case has an appalling criminal record, the discount he received for his plea of guilty is in our view too low.  Taking into account the totality principle, we consider it appropriate to reduce the applicant’s original sentence from 5 years to 4 years.

7. As to whether the sentences should run consecutively, we must make it clear that, where an offender commits a second offence whilst on bail for the first offence, then upon conviction, the sentences for the two offences should run consecutively, particularly so where the two offences are of a similar nature. Were this not the case, the court might be accused of encouraging offenders to commit further offences whilst on bail.  The trial judge was correct in ordering that the sentence in this case was to run consecutively to the sentence which the applicant was serving.

8. The total sentence for the two offences after adjustment is 5 years and 4 months.  Having regard to the circumstances of the case and the applicant’s background, the total sentence is in our view appropriate and not at all excessive.  Accordingly, we see no need to vary the trial judge’s order that the two sentences were to run consecutively.

9. The applicant is granted leave to appeal and the appeal is allowed.  The sentence is reduced from 5 years to 4 years.  This is to run consecutively to the sentence of 1 year and 4 months’ imprisonment already imposed on the applicant.  The total sentence is reduced from 6 years and 4 months to 5 years and 4 months.

Ms. P. Cheng, instructed by the Legal Aid Department, for the applicant.

Mr. H. Macleod, Deputy Director of Public Prosecutions and Mr. S. K. Lam, Senior Government Counsel, for the respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor