R. v. KO WING SHING

IN THE COURT OF APPEAL

1995, No.720
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced two counts of trafficking in a dangerous drug. In the first it was alleged that he had a quantity of 107.63 grammes of a mixture containing 25.05 grammes of heroin hydrochloride at a staircase in Shek Kip Mei, Shamshuipo, and in the second it was alleged that he had a quantity of 243.43 grammes of a mixture containing 54.62 grammes of heroin hydrochloride inside a room in a building at No.36 Shek Kip Mei Street. He pleaded guilty to those charges.

2. The facts show that this was a routine stop and search followed by a search of premises. The drugs, the subject of the first count, being found at the original stop and search and the drugs, the subject of the second count, being found in the premises.

3. He comes before us arguing that 91/2 years as starting point taken by the trial judge was too long. While that starting point is, given the guidelines in Lau Tak-ming [1990] 2 H.K.L.R. 370, at the top of the range it is not outside the proper range. He suggests also that sufficient weight was not given to his plea of guilty. We are satisfied that sufficient weight was given to the plea, however, Miss Crabtree who appears for the Crown today, has very fairly indicated and but for her we would not known this, that after he had been dealt with he offered to give evidence against a co-accused who had pleaded not guilty. That offer in the outcome was not taken up but, as Miss Crabtree informs us, the Crown was satisfied that the offer was a genuine one and that a real measure of co-operation was exhibited by the applicant. This was unknown, of course, to the trial judge.

4. In those circumstances we are satisfied that he should be given some additional credit. We treat the hearing of the application as the hearing of the appeal, allow the appeal and vary the sentence of six years to one of five years.