HKSAR v. CHAN SAU PANG

CACC 487/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 487 OF 2000

(ON APPEAL FROM HCCC NO. 254 OF 2000)

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J U D G M E N T

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1. The judge took as her starting point for sentence what the Applicant's counsel had asked her to take, and she gave the Applicant a one-third discount for his confession to the police on his arrest and his plea of guilty at the earliest opportunity. Despite that, I propose to grant the Applicant leave to appeal against his sentence.

2. The mitigation on behalf of the Applicant was that he had bought the ice for his own consumption but that he was intending to give some of it to his friends. That is what the Applicant had told the police at the time of his arrest. The judge referred to that in her sentencing remarks, but it is arguable that the starting point which she took was only the appropriate starting point if he had been trafficking in all the ice.

3. Lam Kin Choi [1992] 2 HKCLR 235 is authority for the proposition that, because the Applicant pleaded guilty to trafficking in all the ice, he had to be sentenced on that basis. But if that is still good law, it is arguable that, in the light of the mitigation which could not be said to be inherently incredible, the judge should have treated the Applicant's plea of guilty as equivocal, and it is arguable that if she was not going to do so she should have sentenced the Applicant on the basis of his mitigation. Moreover, it is arguable that social trafficking in dangerous drugs should be punished less severely than commercial trafficking. That is a distinction well recognised in other jurisdictions: see, for example, Byrne [1996] 2 Cr. App. R. (S) 34 and Robertson [2000] 1 Cr. App. R. (S) 514.