THE QUEEN v. HO SIK YIN

BETWEEN

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant pleaded guilty before Her Honour Judge Chua in the District Court to being in possession of a dangerous drug namely 373.58 grammes of a mixture containing 49.76 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

2. The judge took the view that as the narcotic content of the mixture was at the top end of the five to eight years sentencing band he was "extremely lucky to have been brought before the District Court". She was also of the opinion that since the drugs had been found in a cabinet in his bedroom he had been "caught practically redhanded by the police", and that therefore the proper starting point for sentence was eight years. Recognizing that her sentencing jurisdiction was limited to seven years the judge then imposed a sentence of that length. The applicant now seeks leave to appeal against that sentence.

3. It is plain from The Queen v. KWOK Chi-kwan (1990)1 HKLR 293 and The Queen v. SO Wai (unreported) Cr. App. 336/90 that some recognition should normally be given for pleas of guilty even where the trial judge is of the view that the offence properly merits a sentence which lies outside the limits of his jurisdiction. In the District Court when the starting point for sentence is 7 years imprisonment a discount for a plea of guilty must be made from the jurisdictional limit of 7 years, not from the starting point which the judge considers would have been appropriate had the case been heard in the High Court.

4. In the circumstances therefore we grant the application and treating the hearing as that of the appeal itself, allow the appeal, quash the sentence of 7 years and substitute for it one of six years imprisonment.