R. v. CHEUNG HING YIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 299 of 1995

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J U D G M E N T

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1. The appellant was convicted of his own plea on 10th February 1995 before a magistrate and was sentenced to three years imprisonment for trafficking in the dangerous drug.

2. The facts were that in O'Brien Road, Wanchai, outside Violet Peel Methadone Clinic, the appellant trafficked in two plastic straw packets containing 0.86 grammes of mixture containing 0.17 grammes of heroin hydrochloride.

3. The learned magistrate in arriving at his sentence did not state in his reasons a starting point. He however acknowledged that he was not entitled to take a starting point beyond his jurisdiction. By that I take him to mean that he was constrained by s.4 of the Dangerous Drugs Ordinance, Cap.134 to a sentence in the magistrates' court on summary conviction to a fine of $500,000 and imprisonment for three years. That being so, it was not within his power under the ordinance to sentence for a greater period of three years. He clearly therefore took three years at his starting point in the sentence. The learned magistrate was horrified by the circumstances of this case and I can fully appreciate that a magistrate who sees directly the results of trafficking and the problems it causes that he should be appalled. This was a sale by a defendant of a quantity of drugs to a youth of 17 years outside the Violet Peel Methadone Clinic where attempts are being made to win addicts from the habit of consumption of dangerous drugs. The fact that it was only two packets, I accept from the learned magistrate, is a regular amount and it must be obvious that those who sell drugs would only keep by them a very small quantity to avoid falling into the penalties which are attracted by possessing and trafficking in larger quantities of drugs.

4. However, taking all that into the consideration, I must firstly consider whether or not a starting point of three years was appropriate for the learned magistrate. I cannot find that it was. This cannot be said to be the worst case envisaged by the legislation when it in acted s.4 and the penalties thereunder. It is a serious case but by no means the most serious that can come before the magistrates' court.

5. The usual period of imprisonment as the learned magistrate concedes in matters involving this quantity of dangerous drug after a plea of guilty various at present between 18 and 24 months. To arrive at a period of 24 months I would suggest that the learned magistrate should have started at an initial point of 30 months.

6. I accept the comments that the magistrate has made that this was an inevitable plea of guilty and not made at the first instance. I have been referred to the case of the R. v. Lai Kwok-hung, CA691 of 1993, where Mortimer, J.A. said :-

"If courts do not recongnise that an early plea is an expression of remorse and if those who plead guilty and save time and expense to the public are not given full credit, there will be little benefit for an accused to plead guilty. For our apart, we also recongnise that a failure to give proper weight to a plea puts counsel in difficulty in the advice he is to give to those who may be inclined to be remorseful and accept their guilt."

In this particular case the plea was not taken at the first instance but was taken at the start of the trial itself. I accept and Mr Chik accepts that something less than the full amount of the discount that may be given in mitigation from an early plea is appropriate in a case such as this. I hold that the learned magistrate erred in taking a starting point of three years and that the correct starting point is 30 months. I find that the learned magistrate erred in finding that there was little nor no mitigation available in respect of this plea and find that an appropriate discount from the starting point of 30 months was a period of six months. I therefore allow the appeal to the extent the sentence is varied to one of two years imprisonment.