HKSAR v. Lui Tsun Shing

CACC 83/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 83 OF 2005

(ON APPEAL FROM DCCC NO. 1370 OF 2004)

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BETWEEN

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Before : Hon Stock JA and Burrell J in Court

Date of Hearing : 24 November 2006

Date of Judgment : 24 November 2006

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J U D G M E N T

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Hon Burrell J:

1.On 5 February 2005 the Applicant was sentenced by HH Judge M. Yuen in the District Court to five years’ imprisonment having pleaded guilty to a single charge of trafficking 43.84 grammes of heroin hydrochloride.  He had been arrested in the course of delivering the drugs to another person for a fee, according to his own admission, of $300.

2.He immediately sought leave to appeal sentence.  Leave was refused by this court on 29 April 2005.  The Applicant was told at that time that seven and a half years was the proper starting point for the amount of drugs involved in his case, and that he had no grounds to appeal.

3.The Applicant has nonetheless renewed his application for leave to appeal by a notice dated 26 July 2006.  In his renewed application he says by affirmation,

“I did not know that the highest starting point of sentence in the District Court was seven years’ imprisonment until I read some articles on court news in the newspapers which mentioned the powers of the courts and stated that the highest sentence in the District Court was seven years’ imprisonment.  I think that it was beyond the power of the District Court to take seven and a half years’ imprisonment as the starting point when sentencing me.  So I apply for leave to appeal out of time.”

4.The Applicant’s understanding of the sentencing powers of the District Court is in error.  The law is clearly stated in HKSAR v LI Yan [1998] 4 HKC 14 in which Mortimer, VP said as follows:

“In order to assess the correct sentence, it is permissible for the judge to adopt as a starting point, a total sentence of more than seven years if the offence or offences warrant such a sentence, but he may not impose a sentence of more than seven years.”

And later, he says,

“… justice requires a further meaningful discount should be given from the maximum of seven years after plea in those cases which would attract seven years or more as the proper sentence which the court ought to impose.  This is to give the accused some benefit for his plea of guilty.”

5.Thus, in the present case the judge adopted a correct starting point of seven and a half years and reduced it by a correct discount of one-third which still left a meaningful reduction of two years from the maximum sentence that could have been passed after trial.

6.There is, thus, no merit in this application, and accordingly we refuse it.

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

Applicant in person