HKSAR v. Lam Kim Fung

CACC000663/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 663
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 12 March 1998

Date of delivery of judgment: 12 March 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. This is an application made out of time by the Applicant for leave to appeal against the sentence of 4 years 2 months' imprisonment imposed upon him for trafficking in dangerous drugs, namely 148.74 grammes of a mixture containing 17.82 grammes of heroin hydrochloride. No satisfactory reason has been forthcoming to explain the failure to lodge the application timeously.

2. There is only one issue that is raised on the application. That is whether the Applicant was entitled to receive a 1/3 discount for his guilty plea. The judge, Deputy Judge Poon did not give him the full discount and the reasons he gave for this were :

"In view of the present narcotics content to be 17.82 grammes I adopt a starting point of 5 years and 7 months. I also take into account the number of packets involved is quite substantial, namely 104 packets, and also this is not the first time the defendant is involved in drug-trafficking activities. Further, defendant was caught red-handed whilst carrying the amount of drugs around the streets. I also take some reference in relation to what prosecution told me about the retail value, although I note that Mr. FUNG does not agree to it, it always provides me with some reference."

3. None of these reasons are valid reasons not to give the Applicant a full 1/3 discount. The number of packets and the retail value would have been factors which could properly have been considered in determining the proper starting point.

4. So far as the previous record of the Applicant is concerned, he should not be sentenced for this. The only relevance of his record is that he could not be treated as a person of good character and receive a discount for this.

5. The Applicant should receive the full discount. Accordingly treating the application as the appeal we allow the appeal and order that the sentence be reduced from 4 years 2 months to 3 years 8 months. To this extent this appeal is successful.

Representation:

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

Lam Kim-fung, Applicant in person