R. v. Tsoi Wai Ming
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CACC000670/1995 IN THE COURT OF APPEAL 1995, No. 670
------------------------------------- Coram: Mortimer and Mayo, JJ.A. and Sears, J. Date of judgment:2 April 1996 ---------------------- J U D G M E N T ---------------------- Mortimer, J.A. (giving the judgment of the Court): 1. On 12 September 1995 the applicant pleaded guilty to one offence of trafficking in heroin and one of possession of cannabis before Saied J. He adjourned sentence until 26 September to allow inquiries to be made about assistance the applicant said he was giving to the prosecution authorities. On that day he was sentenced respectively to 18 years and 2 months concurrent. He applies for leave to appeal against the sentences. The facts 2. The applicant was seen placing a bag containing a mixture of 882 grammes of heroin in a van which he parked in a car park in Tokwawan. He was trafficking in that amount of the drug. When he returned to the van he was arrested. Thereafter, events were somewhat unusual. He was tried and convicted before Gall J and a jury and sentenced to a total of 21 years. Later, his appeal was allowed by this Court but a retrial was ordered. 3. When he appeared on his retrial before Saied J, he pleaded guilty. Saied J was not told of the earlier sentence nor did he inquire. In sentencing, he chose 24 years as the starting point. He was unimpressed by the assistance that the applicant said he was giving to the prosecution authorities. He said that the only mitigation was his plea of guilty and reduced the 24 years to 18 years on the grounds of the plea. Because the plea was late he reduced the starting point by 25% rather than the usual 30% for an early plea. The application 4. Two points are taken by Mr Jeremy Cheung on his behalf. The first is that judge's starting point in the particular circumstances of this case was unfair. The reason is that the judge at the first trial heard the case for some 8 days and must have had a comprehensive grasp of the whole factual situation. He chose 21 years as his starting point. When the applicant appeared before Saied J on a retrial, he pleaded guilty. No further facts came out at the retrial and he chose 24 years as the starting point. Both those sentences are within the proper guidelines for this case. So Mr Cheung says that it is unfair to this applicant that the judge, who was in possession of no more facts than the first judge, should increase the starting point. 5. There are many occasions when on a retrial the judge will select a higher starting point than on the first trial. The reasons are that the judge on the second trial may be aware of different circumstances. We say nothing in principle relating to the judge on a retrial, choosing the same or a higher or a lower sentence than the judge at the first trial. 6. In this particular case, however, the circumstances are such that there was some unfairness to the applicant having pleaded guilty on his retrial when the judge had no greater knowledge of the case than the first judge. In those circumstances we think it proper and fair that the application should be granted and this application should be treated as the appeal. The starting point should be reduced to 21 years. 7. We turn to the other point taken by Mr Cheung - that the applicant has given some assistance to the authorities and ought to be given some credit for it. Saied J considered this matter and decided that it was not worthy of any weight. Certainly, the applicant has given some information. He has indicated that he is willing to give evidence against a particular person if he is in due course arrested. Whereas this Court considers that assistance to be very small, we are prepared to give some minimal weight to that in sentence. It is open, of course, to the applicant in the future - if he gives evidence - to apply for a reduction of his sentence to the Executive in the usual way. 8. The final matter we consider is the amount of discount for the plea. Mr Cheung makes no submission on that. Conclusion 9. The judge's selection of 25% discount for this very late plea is not one with which we would interfere. But giving minimal weight to the assistance the applicant has given to the prosecution authorities in order to encourage him to do more if it becomes possible, and to the late plea, we reduce the sentence from a starting point of 21 years to 15 years. 10. In those circumstances we allow the appeal and reduce the sentence of 18 years passed by the judge, to 15 years. The 2 months concurrent sentence remains.
Representation: Mr Jeremy Cheung (DLA) for Applicant Mr A.A. Bruce (Crown Prosecutor) for Crown/Respondent |