HKSAR v. Cheng Kong Sang
Read the full judgment text of CACC 371/2008 on BabelCite. This Court of Appeal judgment was delivered on 28 October 2010 before Yeung JA, Beeson J, Lunn J.
Criminal law – dangerous drugs – trafficking in a dangerous drug – appeal against conviction – substitution of conviction for possession of dangerous drugs contrary to s 8 of the Dangerous Drugs Ordinance, Cap 134 – Drug Addiction Treatment Centre report under s 54A of Cap 134 – appellant found not drug dependent and unsuitable for rehabilitation – sentencing for substituted offence – approximately 25 grammes of heroin with retail value of about HK$18,000 – persistent offender with seven prior convictions for the same offence – starting point of 20 months for quantity and 10 months for latent risk factor, totalling 30 months – one-third discount for appellant's early wish to plead guilty – final sentence 20 months' imprisonment substituted for original 5 years and 9 months – appeal allowed in part.
Legal issues: Sentencing for possession of dangerous drugs with latent risk factor and guilty plea discount
Outcome: Appeal against conviction allowed; conviction for trafficking substituted with conviction for possession of dangerous drugs; original sentence set aside and substituted with 20 months' imprisonment.
Cited by 18 cases
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CACC 371/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 371 OF 2008 (ON APPEAL FROM DCCC 427 OF 2008) _______________________ BETWEEN
_______________________ Before: Hon Yeung JA, Beeson J and Lunn J Date of Hearing: 28 October 2010 Date of Judgment: 28 October 2010 _______________________ J U D G M E N T _______________________ Hon Yeung JA (giving the judgment of the Court): 1.The appellant was convicted of trafficking in a dangerous drug and sentenced to 5 years and 9 months’ imprisonment. 2.On 8 October 2010, we allowed an appeal by the appellant against the conviction and we substituted therefore a conviction for possession of dangerous drugs contrary to s 8 of the Dangerous Drugs Ordinance, Cap 134. The originally sentence was set aside. 3.Pursuant to the requirement of s 54A of that Ordinance, we directed the preparation of a Drug Addiction Treatment Centre Report on the appellant’s suitability for rehabilitation and remanded him in custody for that purpose. 4.We now have the benefit of a DATC report, which states that the appellant is no longer a drug dependant and is therefore not considered to be suitable for admission to a drug addiction treatment centre. That being the case, the only option is one of an immediate custodial sentence. 5.This case involves quite a substantial quantity of heroin with a retail value of about $18,000 and it carries with it a clear latent risk factor. Mindful of the fact that the appellant is a persistent offender with no less than seven previous convictions for the same offence, we think a suitable starting point for such a quantity, namely about 25 grammes of heroin, is 20 months’ imprisonment, and that another 10 months should be added to reflect the latent risk factor. An overall starting point should be 30 months. 6.The appellant had wished to plead guilty to possession of these drugs at the outset and he should be entitled to a one-third discount for that plea. The sentence should therefore be 20 months’ imprisonment. 7.Accordingly, we set aside the term of 5 years and 9 months’ imprisonment imposed on the appellant and substitute therefore a term of 20 months’ imprisonment.
Ms Samantha Chiu, PP of the Department of Justice for the Respondent. Appellant: In Person. |
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