HKSAR v. CHU TIT MAN

CACC 570/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 570 OF 2002

(ON APPEAL FROM HCCC 69 of 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 On 31 October 2002 the applicant pleaded Guilty before Deputy High Court Judge Wright to two counts of trafficking in dangerous drugs. In the early hours of 13 October 2001 he was searched by police when he was leaving a flat in a building in Shamshuipo and, in a paper bag, were found seven plastic bags with heroin, which he said he was taking to others. With keys found upon him, the police gained entry to a room in the flat from which he had just emerged, and a further quantity of drugs was there discovered in plastic bags in a box placed under a bunk bed. The applicant's fingerprints were found on the box. The applicant told the police that he kept the drugs for someone.

2 These findings led to an indictment containing two counts: the first for trafficking in 155.2 grammes of heroin hydrochloride (that is the amount found in the bag which the applicant had been carrying); the second for trafficking in 49.56 grammes of heroin hydrochloride (which is the amount found under the bed).

3 The judge took a starting point of twelve years' imprisonment as a global starting point for the two offences together. That was, in our judgment, correct. He then reduced that total to one of ten years' imprisonment, the reduction to reflect the plea of guilty; although it will be evident that does not reflect the one-third discount that is often given for a guilty plea. That was because the plea was late. The trial was due to start on 25 October but on that day, when the applicant was still maintaining his Not Guilty plea, those acting for him withdrew from the case due to a change in instructions, so the trial was adjourned to 29 October; and then again, once new lawyers were acting, to 30 October. The applicant then challenged the admissibility of his confessions. He gave evidence in the voir dire, and the judge found that he lied in his evidence in proffering the allegations which he levelled against the police. Following the judge's ruling that the confessions were voluntary, the applicant then changed his plea to Guilty.

4 The applicant was aged almost 21 years at the date of the offences. He has previous convictions and, in particular, a conviction in March 2000 for trafficking in dangerous drugs.

5 The applicant appears before us unrepresented. He has complained in his home-made grounds, and he repeats the complaint before us, that the reduction for his plea of Guilty was too little, and that in the circumstances his sentence was harsh. We do not agree. Given the history of the matter and his decision to plead Guilty only after the conclusion of a voir dire in which he was not believed, the course which the judge adopted was appropriate. No valid criticism can be made of the total sentence of ten years' imprisonment, and with that total we shall not interfere.

6 We would say only that whereas the judge sentenced the applicant to ten years' imprisonment upon each count, the accurate approach is to sentence on each count according to the quantity of drugs represented by that count. The judge did not do that, with the result that the individual sentences, although not the total, were too high. The judge said in his sentencing remarks that the appropriate starting point on Count 1 was ten and a half years' imprisonment, and on Count 2 that an eight-year starting point was appropriate. Accordingly, giving the percentage discount intended by the judge, with which we do not argue, the appropriate sentence on Count 1 was eight years and nine months' imprisonment; and on Count 2 six years and eight months' imprisonment. To give effect to this correction, but to recognise at the same time that the overall starting point of twelve years was correct, what we shall do is to grant the applicant leave to appeal against sentence and, treating the hearing as the appeal, we substitute on Count 1 a term of eight years and nine months' imprisonment, and on Count 2 a term of six years and eight months' imprisonment of which one year and three months shall run consecutively to the term on Count 1, the remainder to run concurrently; making a total of ten years' imprisonment.