Read the full judgment text of CACC 309/2011 on BabelCite. This Court of Appeal judgment was delivered on 15 March 2012 before Stock VP, Saw J.
Criminal law – sentencing – dangerous drugs – doing an act preparatory to or in furtherance of the manufacture of a dangerous drug – s.40(1)(c) Dangerous Drugs Ordinance Cap. 134 – precursor chemical methylephedrine – airport arrest – plea of guilty – discount for assistance to authorities – whether further discount warranted for assistance not assessable at time of sentencing – application for leave to appeal sentence out of time – principles governing extension of time – whether appropriate to grant indulgence. The applicant was arrested at the Hong Kong International Airport in possession of 3.85 kilograms of methylephedrine, a precursor chemical used in the manufacture of a dangerous drug, and was to be paid $50,000 to $60,000 to deliver it to Australia. He pleaded guilty in the District Court and was sentenced to 3 years and 4 months' imprisonment, with the sentencing judge granting the usual one-third discount for the guilty plea from a starting point of 5 years. Before pleading guilty, the applicant had informed Customs of the identity of his recruiter, 'Hak Chai', who was subsequently arrested. After sentencing, the applicant identified 'Hak Chai' at an identification parade, provided a further statement, and attended the District Court to give evidence against him, which was accepted as a significant factor in 'Hak Chai's' decision to plead guilty and be sentenced to 4 years' imprisonment. The applicant filed his application for leave to appeal sentence out of time on 4 August 2011, about two weeks after 'Hak Chai' was sentenced. The Court of Appeal, applying the principles in R v Wong Kai Kong [1990] 1 HKC 279, considered the reasons for the delay and the period elapsed, and held that this was an appropriate case in which to grant leave to appeal out of time. On the merits, the court was satisfied that the applicant's assistance was deserving of a further discount from the starting point, beyond the one-third already allowed for his guilty plea. Taking the plea and the assistance together, a total reduction of 40% from the starting point of 5 years was appropriate, resulting in a sentence of 3 years' imprisonment. Leave to appeal out of time was granted, the application for leave was treated as the hearing of the appeal, the appeal was allowed, and the sentence of 3 years and 4 months' imprisonment was set aside and substituted with a sentence of 3 years' imprisonment.
Legal issues: Whether to grant leave to appeal sentence out of time · Appropriate sentencing discount for assistance to authorities and guilty plea
Outcome: Leave to appeal out of time granted; appeal allowed; sentence of 3 years and 4 months' imprisonment set aside and substituted with a sentence of 3 years' imprisonment.