HKSAR v. CHAN CHI YU

CACC 767/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 767 OF 1997

(ON APPEAL FROM DCCC 1034/1997)

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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. At a late stage in his trial in the District Court before Judge Kilgour the applicant who had been charged with trafficking in dangerous drugs changed his plea from not guilty to guilty.

2. At the conclusion of the trial the applicant who was D2 was sentenced to 5 years 3 months imprisonment. His co-accused who maintained his position to the end of the trial was sentenced to 6 years imprisonment.

3. The quantity of heroin involved was 25.54 grammes of a mixture containing 23.12 grammes of narcotic content. It would appear that the Judge was well within the R. v. Lau Tak-ming [1990] 2 HKLR 370 guidelines in adopting 6 years imprisonment as his starting point.

4. In the present application Mr. Jerome Matthews for the applicant raises the question of the amount of the discount the Judge gave the applicant for changing his plea.

5. Had the applicant pleaded guilty at an early stage he would have been entitled to receive a discount of 33% or 2 years off the sentence.

6. In his Reasons for Sentence the Judge refers to the small amount of time saved and the little remorse he had demonstrated in the light of the serious allegations he had made against prosecution witnesses (presumably) during the course of his trial.

7. We do not think for one moment that the Judge can be faulted in coming to the conclusion that where a defendant has chosen to vigourously contest proceedings the discount he should receive should be substantially reduced. This is a matter which comes within the Judge's overall discretion and we are not persuaded that the exercise of this discretion should be interfered with in the present case. Accordingly this application is dismissed.