HKSAR v. LIT CHI FAI

CACC 330/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 330 OF 2004

(ON APPEAL FROM DCCC NO.90 of 2004)

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Reasons for Judgment

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Hon Yeung JA (giving reasons for judgment of the Court):

1.  On 26 January, 205, we granted leave to the applicant, Lit Chi Fai to appeal against sentence. We allowed the appeal and reduced his total sentence to forty months from forty-four months’ imprisonment. We indicated that we would give our reasons in writing and this we now do.

2.  The applicant pleaded guilty before Deputy Judge Mackintosh in the District Court to the 1^st charge of trafficking in dangerous drugs and the 2^nd charge of failing to surrender to custody without reasonable excuse.

3.  The judge adopted the respective starting points of five years six months and three month’s imprisonment before reducing them by one-third on account of the applicant’s guilty pleas and co-operation. The sentence on the 1^st charge should therefore be forty-four months, which the judge mistook as three years and six months. The judge ordered a consecutive sentence of two months’ imprisonment on the 2^nd charge.

4.  Instead of sentencing the applicant to a total sentence of forty-six months’ imprisonment, the judge only sentenced him to forty-four months’ imprisonment.

5.  The applicant sought leave to appeal against sentence.

The Facts

6.  On 18 November 2003, the applicant was arrested after a brief struggle when he tried to enter Flat B on 3/F, 78 Sai Yee Street (the flat) in Mongkok. The police found, in his jeans pocket, 38.17 grammes of a mixture containing 19.48 grammes of heroin hydrochloride.

7.  A number of other items, including a large pile of transparent re-sealable plastic bags were subsequently seized from the flat.

8.  The applicant claimed to have bought the heroin for his own consumption and for selling in a divan after dilution.

9.  The applicant was granted bail in the magistrate’s court to appear at the District Court on 17 February 2004. He failed to do so and was only re-arrested on 17 April 2004.

Grounds of Appeal

10.  Mr Andrews, on behalf of the applicant, raised no objection to the respective starting points adopted by the judge. However, he suggested that the applicant should be given more than the one-third discount in view of his co-operation and the additional materials admitted with the leave of the court.

11.  We had given the matter careful thought. We were persuaded that the applicant should be given a greater discount than one-third because of the additional materials before us.

12.  In deciding the actual discount, we took into consideration that the starting point of five years and six months on the 1^st charge, in view of the quantity of drugs involved, was quite lenient.

13.  We were of the view that a total discount of about 43% would be adequate to reflect all the mitigating factors put before us.

14.  We therefore reduced the sentence on the 1^st charge to thirty-eight months’ imprisonment to run consecutively to the two months’ imprisonment on the 2^nd charge, making a total sentence of forty months’ imprisonment.