THE QUEEN v. LAU KWOK CHUN

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J U D G M E N T

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Hon. Yang, CJ:

1. The applicant pleaded guilty to a charge of trafficking in a dangerous drug and was sentenced by H.H. Judge Surman to imprisonment for four years.

2. The facts are that at 21.30 hrs. on the 23rd January last year, the applicant entered Hong Kong by way of the Lo Wu Check-point. He was followed by a party of on a train and stopped at Kowloon Tong Railway Station where he was. searched and later taken to the Queen Elizabeth Hospital for a body cavity search. In his rectum were found two packets of No. 4 heroin totalling some 45 grammes.

3. The pleas in mitigation advanced on his behalf in Court below were (a) his plea of guilty; (b) that he had rendered assistance to the police in a matter which was not drug-related, i.e. in the Ka Wah Bank Fraud Case; and (c) that he brought the drug into Hong Kong from across the border for his own consumption. This last factor in mitigation was not denied by the Crown at the trial.

4. The judge in his assessment of the sentence took into consideration "the significant assistance" he had given to the authorities though perhaps per incuriam he referred to the assistance as assistance "in the investigation of other drug cases" whilst in mitigation the assistance was described as an assistance in the Bank Fraud Case.

5. He also gave credit to the applicant for his plea of guilty. But in his Reasons for Verdict he made no mention of the plea put forward before him that the drug was brought across the border for his own consumption.

6. It is argued on appeal before us this morning that some credit should be given to the applicant for this last factor in mitigation. In agreeing with this submission, we respectfully follow the decision of Penlington, JA, in the case before this Court, The Queen and CHAN Muna-lung, Crim. App. No. 394/91, where the learned judge said this:

    "The question of whether or not the applicant was bringing the drugs into Hong Kong for his own consumption or for re-sale was highly relevant to the question of the proper sentence to be passed, and if they were only for his own use, was a strong mitigating factor. On the authority of Costly (1989) 11 Crim. App. R (S) p. 357, at p. 361, we consider that, in the absence of a finding on this point, a sentence should be passed which reflects the factual version most favourable to the applicant. The application is therefore allowed and the sentence reduced..."

7. Following the same course adopted in that case, we would give the interpretation of the facts most favourable to the applicant and give him the credit that the learned trial judge should have given, i.e. that the drugs were brought in for his own consumption. Whilst we feel that the discounts given by the learned trial judge, i.e. one-third discount for the assistance given or being given and the nine-twelfth discount for the plea of guilty, are over-generous, nevertheless, we are of the view that a further discount should be given to the applicant for the reasons already stated.

8. We would therefore allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. We quash the sentence of four years' imprisonment and substitute therefor a sentence of three years.