HKSAR v. Cheng Shiu Yu

CACC 495/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 495 OF 2006

(ON APPEAL FROM DCCC 918 OF 2006)

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BETWEEN

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Before : The Hon Stuart-Moore VP and Beeson J in Court

Date of Hearing : 6 November 2007

Date of Judgment : 6 November 2007

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J U D G M E N T

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Beeson, J (giving the judgment of the Court):

1.The Applicant pleaded guilty in the District Court before Judge Chua to one charge of trafficking in a dangerous drug.  The Applicant admitted the summary of facts.  He had been stopped at the border on his way back to Hong Kong from China.  A search revealed a package of heroin concealed in his underpants.  Analysis by the Government Chemist established the quantity as 83.61 grammes of a mixture containing 37.68 grammes of heroin hydrochloride.  After entering his plea the Applicant gave evidence at a Newton enquiry, reiterating the claim that he made to the police on arrest, that the drugs were for his own consumption.  The judge rejected the Applicant’s evidence.

2.When sentencing the judge took a starting point of six years and nine months.  Under the Lau Tak Ming-ming guidelines the sentencing bracket for 10.50 grammes of narcotic is five to eight years imprisonment.  The Applicant was very lucky the judge did not take a starting point of seven years.  The judge gave a discount of nine months for the plea of guilty, noting that the Newton enquiry had been unsuccessful and thus the Applicant could not expect the usual one-third reduction for his plea.

3.The Applicant applies for leave to appeal out of time against sentence, complaining that the judge failed to give him a sufficient discount for his plea of guilty and thus the sentence was manifestly excessive.  In her Reasons for Sentence the judge set out briefly the personal particulars of the Applicant – he relied on social welfare assistance which he supplemented by selling parallel goods; maintained homes in Hong Kong and China; was a drug addict of many years’ standing and had a lengthy conviction record starting in 1973; his last conviction being recorded in September 2003.  He had three previous trafficking convictions as well as nine convictions for other drug-related offences.

4.The Judge set out the gist of the Applicant’s explanation at the Newton enquiry as to how and why he was carrying the drugs into Hong Kong and commented “I do not know how the defendant expected any judge in Hong Kong to accept such a story.  Needless to say, the Newton hearing fails.”

5.In assessing sentence the judge noted two cases which indicated that where a Newton enquiry had been unsuccessful an applicant might expect a reduced discount for the plea.  In R v Lee Chiu-pang [1995] 2 HKC 523, the judge stated that credit for a plea of guilty was “to some extent offset by the conduct of the appellant in taking a stance, which in the end, did not commend itself to the court”, the stance referred to being a Newton enquiry.

6.In HKSAR v Tong Kim-chung CA481 of 2001, Stock JA stated “a challenge to the facts, if unsuccessful, may, depending on the circumstances, place a defendant in a position less advantageous than had he pleaded guilty and accepted the true facts of the case.”  The judge noted too that defence counsel had advised the Applicant of the risk he took if he was unsuccessful on a Newton enquiry.

7.Mr Omar, who appears today for the Applicant, has put before us cases to counter those referred to.  In those cases, although the sentencing judge declined a full discount for a plea of guilty, the appellate court decided that a greater discount should have been given and a final discount was given in the order of 20% to 25%.

8.The Respondent relies on HKSAR v Chan Wan-cheung CACC 439 of 2006, where this court upheld a discount of only 13.33% following a Newton hearing.  Those circumstances were extreme in that both defendants who had sought this procedure were attempting, apparently, to persuade the sentencing judge that they had no knowledge of the handgun which was used in an attempted robbery.  It was accepted that a starting point of 15 years’ imprisonment was justified if knowledge of the intended use of the gun could be established but, as this court stated, a starting point of “no more that 7 years” would have been appropriate on the account put forward on the Newton hearing.

9.It is unclear in the present case how the judge decided the amount of the discount should be about 11%.  Where the usual discount is departed from it would be helpful if brief reasons could be given.

10.However, the judge’s comments indicate that she was unimpressed by what was, by any standards, a fanciful account of how a man dependent on welfare assistance could afford to buy drugs valued in the region of $37,875.00, on the basis of a promise to pay $5,000.00 that he did not have, at some unspecified date in future.  No doubt she took into account his previous record; a record which, in any event, could have justified a higher than usual starting point for sentence.

11.Although the Newton hearing occupied the time of the court, it is not the time expended that is significant, but rather the nature of the offence and the fact that a fanciful enquiry detracts from the remorse which is an important element of a guilty plea.

12.However the value of the Applicant’s plea in our view should have been acknowledged more generously, it being important to encourage pleas of guilty.  We agree with the judge that the Applicant should not be entitled to the full discount, but the value of the plea in saving court time and costs should be recognised in a meaningful way.

13.Accordingly, we grant leave to appeal out of time and treating the hearing as the appeal, we quash the original sentence, retain, with some misgiving, the starting point of 6 years 9 months taken by the judge, and discount it by around 20% to acknowledge the plea of guilty.  We substitute a sentence of 5 years and 4 months imprisonment for the sentence of six years imposed by the judge.

Mr David Leung, SGC of Department of Justice, for the Respondent

Mr A M Omar, instructed by Legal Aid Department, assigned by Director of Legal Aid, for the Applicant