HKSAR v. LI KI FUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 106
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty to one count of trafficking in a dangerous drug in the committal proceedings in Eastern Magistracy. The amount of dangerous drug specified in the indictment is 130.39 grammes of a mixture containing 117.28 grammes of heroin hydrochloride. The applicant was intercepted by two police officers on surveillance duty as he came onto the street. The drug was found on his person in thirteen small plastic bags. On his arrest, the applicant admitted the offence.

2. The applicant was committed to the High Court for sentence. In sentencing the applicant, Saied, J. considered the amount of dangerous drug to fall within the bracket of 8 to 12 years' imprisonment. He took 10 years as the starting point and discounting that by 1/3 for the plea of guilty, he sentenced the applicant to 6 1/2 years' imprisonment.

3. The applicant now applies for leave to appeal against sentence on the ground that it is manifestly excessive. Mr. Ramanathan submits that the Judge was quite right to regard the quantity of dangerous drug fall within the bracket of 8 to 12 years' imprisonment and he has no disagreement with the 1/3 discount given at the time. However this morning Mr. Ramanathan has raised a matter which, he says, if the Judge was aware of it at the time of sentencing, the sentence would have been lower. We have considered this matter. We agree that this matter would go to further discount in the sentence.

4. The Judge had properly adopted 10 years as the starting point but in view of this matter that has just come to light, we consider the applicant should be given a further discount of 1 year. Accordingly we treat the application for leave to appeal as the appeal against sentence and allow the appeal. The sentence of 6 1/2 years' imprisonment is set aside and substitute it by a sentence of 5 1/2 years' imprisonment.