R. v. Lun Nai Kin

CACC000652/1996

IN THE COURT OF APPEAL

1996, No. 652
(Criminal)

HEADNOTE

One third discount for plea. If trial judge does not give such a discount after plea he should state why he has not done so.

IN THE COURT OF APPEAL

1996, No. 652
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer and Mayo, JJ.A.

Date of hearing: 18 April 1997

Date of judgment: 18 April 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced one charge of trafficking in a dangerous drug, it being particularized that he, on 9th February 1996, at the junction of Pilkem Street and Austin Road, Yaumatei, unlawfully trafficked in a dangerous drug, namely 28.16 grammes of a mixture containing 25.67 grammes of heroin hydrochloride. He pleaded not guilty to that charge of trafficking but was at all times prepared to plead guilty to simple possession. After trial he was found not guilty of trafficking but was found guilty of simple possession. He was sentence to 2 1/2 years' imprisonment. He now appeals against that sentence.

2. The facts were all too familiar. He was stopped and searched. The dangerous drugs were found in a plastic bag wrapped in newspaper in his left front pocket and he said to the arresting officer, "Ah Sir, this is white powder for my own consumption only. Please give me a chance."

The trial judge when sentencing said:

"Had I convicted Mr. Lun of trafficking then I would have taken a starting point of 6 years' imprisonment (R. v. Lau Tak Ming), but as I have convicted him of simple possession he must be dealt with on that basis. In my view the appropriate starting point for this defendant with this quantity of drugs is 3 years. He admitted possession and deserves credit for that, albeit limited as he was caught red handed, and I propose to reduce the sentence to reflect that admission to 2 and 1/2 years' imprisonment."

Mr. Marray, who appears for him today, argues that given the preparedness to plead guilty at all times to the offence of which he was eventually convicted, the reduction discount was not a sufficient one. He points out that the applicant is an addict and to the report from the drug addiction treatment centre indicating that he would have been suitable for admission thereto. We do not need to canvass his other grounds of appeal as we do not think they have any real weight. We have said more than once that an appropriate discount for plea is a discount of one-third. We have also said that the question of discount is a matter for the discretion of the trial judge, but that this discretion must be exercised upon some rational basis which the trial judge should advert to in his Reasons for Sentence. The trial judge did not give any reason why he was not giving the full one-third discount in this case and we, having considered the facts, are unable to discover any reason why that discount should not have been given. That being so, we consider the application must succeed, its hearing will be treated as the hearing of the appeal. The sentence of 2 1/2 years will be varied to one of two years.

Representation:

Mr. I.G. Cross, Q.C. & Miss E. Tsang (Crown Prosecutor) for the Respondent.

Mr. John Marray assigned by D.L.A. for the Applicant.