HKSAR v. Au Yeung Chuen Yee

HCMA 672/2011

HEADNOTE

The principle is that where a defendant has pleaded guilty, he should always receive a meaningful discount from the maximum sentence that the sentencing court is empowered to impose. And that is so even where he is fortunate not to have been brought before a court with greater sentencing powers. But a discount can be regarded as meaningful even though it is less than a discount of one-third. What is meaningful depends on all the circumstances.

HCMA 672/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 672 OF 2011

(ON APPEAL FROM ESCC 2904 OF 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 23 February 2012

Date of Judgment: 23 February 2012

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J U D G M E N T

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1.On 28 August 2011 this Appellant, a man in his mid‑30s, appeared before D J Dufton, Esq on two separate informations, one being ESCC 2904/2011 which was of unlawful trafficking in dangerous drugs and the other being ESCC 3519/2011 which was of unlawful possession of dangerous drugs. He pleaded guilty under both informations. The possession offence had been committed about 3 weeks earlier than the trafficking offence.

2.Taking a starting point of 3 years and discounting it by a third for the guilty plea, the Magistrate passed a sentence of 2 years’ imprisonment for the trafficking offence.  Taking a starting point of 9 months and discounting it by a third for the guilty plea, the Magistrate passed a sentence of 6 months imprisonment for the possession offence.  He made the two sentences wholly consecutive.  So the Appellant was sent to prison for 2½ years.  At the end of his Reasons for Sentence dated 19 September 2011, the Magistrate said that he was satisfied that a total of 2½ years’ imprisonment “properly reflected the appellant’s criminality on the charges in both cases and was a meaningful discount from the maximum jurisdiction of the court”.

3.In the single perfected ground of appeal filed on the Appellant’s behalf on 14 November 2011, it is contended that the Magistrate, by sentencing the Appellant to 2 years’ imprisonment on the trafficking charge, had failed to give the Appellant any, let alone any meaningful, discount for his guilty plea on that charge.  What lay behind that contention became clear from the skeleton submissions filed on the Appellant’s behalf on 30 January 2012.  It is asserted in those skeleton submissions that the maximum prison term that the Magistrates’ Court can impose for unlawful trafficking in dangerous drugs is 2 years’ imprisonment.  That assertion is wrong.  By virtue of s 4(2)(a) of the Dangerous Drugs Ordinance, Cap 134, the maximum term of imprisonment that the Magistrates’ Court can impose for unlawful trafficking in dangerous drugs is 3 years’ imprisonment.

4.Upon being confronted with s 4(2)(a), counsel for the Appellant acknowledged that he had overlooked the same, but he nevertheless maintained that the discount accorded to the Appellant was less than meaningful and ought to have been such as to result in a total of 2 years’ rather than 2½ years’ imprisonment.

5.I have been referred to, among other decisions: the Court of Appeal’s decision in HKSAR v Li Yan [1998] 4 HKC 12; Lunn J’s decision in HKSAR v Bui Van Trung, HCMA 596/2004, 3 September 2004; and McMahon J’s decision in HKSAR v Tam Siu Hong, HCMA 785/2008, 17 November 2008.  The principle is that where a defendant has pleaded guilty, he should always receive a meaningful discount from the maximum sentence that the sentencing court is empowered to impose.  And that is so even where he is fortunate not to have been brought before a court with greater sentencing powers.  But a discount can be regarded as meaningful even though it is less than a discount of one-third.  What is meaningful depends on all the circumstances.

6.This offence of unlawful trafficking in dangerous drugs was aggravated by the fact that it took place outside a methadone clinic.  Those were the circumstances of the offence.  As for the circumstances of the offender, the Appellant has a string of previous convictions, including convictions for unlawful trafficking in dangerous drugs.  And he was on police bail for unlawful possession of dangerous drugs when he committed this offence of unlawful trafficking in dangerous drugs.  In my view, the Appellant has received a meaningful discount and there is no basis on which to reduce his sentence.  The appeal is dismissed.

Mr Wong Hay Yiu, instructed by Wat & Co. and assigned by the Legal Aid Department, for the appellant

Ms Noelle A Chit, of the Department of Justice, for the respondent