HKSAR v. CHONG WING HOI

CACC737/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 737 OF 1997

(ON APPEAL FROM HCA294 OF 1997)

______________

_______________

J U D G M E N T

_______________

Chan, CJHC (delivering the judgment of the court) :

1. The Applicant pleaded guilty in the middle of the trial before Stock J. and a jury to one count of trafficking in dangerous drugs. He was sentenced to imprisonment for 5 years and 10 months. He now applies for leave to appeal against sentence.

2. The trial before the learned judge was the second trial. It seems that at the first trial, the Applicant pleaded not guilty. The trial ran its course and he was convicted. But on appeal, the conviction was quashed and the Court of Appeal ordered a re-trial.

3. At this second trial, the Applicant again pleaded not guilty and the trial proceeded. According to the trial judge, there were supposed to be 3 to 4 witnesses for the prosecution. When the second witness was giving evidence, the Applicant, through his counsel, indicated that he would change his plea. Thereupon the trial judge directed the jury to return and they did duly return a guilty verdict.

4. The dangerous drugs involved consisted of 455.94 grammes of a mixture containing 111.76 grammes of heroin hydrochloride. Inside the hut in which the Applicant and the drugs were found, police also seized some paraphernalia for drug trafficking including a blender, a sieve, a pair of scissors, clips and a tin foil. There were altogether 27 bags containing the drugs. The Applicant was found in the hut shortly after midnight. Those were the circumstances of the case.

5. There are basically two main complaints in this application. The first is that the Applicant alleges that his lawyer advised him to plead guilty on his admission that he possessed the dangerous drugs in the hut and he went there to buy drugs for his own consumption. The Applicant blames his lawyer for submitting on his behalf to the trial judge on the basis that he went to the hut "to buy white powder (and) to help in the packing of drugs". This complaint, in our view, is completely at variance with the transcript. When the Applicant's counsel indicated to the trial judge that the Applicant would change his plea, the judge tried to ascertain from counsel the basis of his plea. The bases appeared to be these: that the Applicant was found in the hut where the dangerous drugs and equipment connected with the dangerous drugs were found; that he had the keys to the hut; that he had access to and control of the drugs; and that he was there to assist a Mr. Chan in the packing of those drugs.

6. It is clear from the transcript that the Applicant was asked twice by the trial judge whether he accepted such bases for his plea. This appears on p.5 and 6 of the transcript. Twice the Applicant said that he accepted those bases. This was quite clear and unequivocal. In mitigation, his counsel did try very hard to minimise the Applicant's role in the offence. But the trial judge did not accept that submission. He was satisfied that the Applicant was a party to a dangerous drugs business which was going on at the hut and was not merely helping on the odd occasions to pack drugs when he happened to be there to buy and consume drugs. The trial judge, however, accepted that the Applicant was not a prime mover in this affair. Nor was he the key player. The Applicant knew what he was doing when he pleaded guilty. We do not accept this ground of appeal.

7. The Applicant's second complaint is that the trial judge had failed to give sufficient discount for his plea and certain materials which were placed before the court in the form of a memorandum prepared by the relevant authority. With regard to his plea, it was entered in the middle of the second trial. In view of the history of the case, his plea could hardly have been prompted by any real sense of remorse. Any saving of legal costs and time would have been off set by those costs and time wasted in his first trial and subsequent appeal. Yet the trial judge had obviously taken his plea into consideration and gave him some discount. With regard to the materials placed before the court, it is clear that the trial judge had taken into consideration the materials placed before him. He adopted a starting point of 9 years and gave a discount of 3 years for the Applicant's mitigating circumstances including those materials. He gave a further 2 months reduction to take into account of another offence.

8. At the hearing of the instant application today, Mr. Wong for the Prosecution very helpfully presented us with a more up-to-date memorandum regarding those materials. In the light of these additional materials, we take the view that the Applicant ought to be given a further discount in his sentence. For these reasons, we think that a sentence of 41/2 years would be appropriate in the circumstances.

9. We, therefore, grant leave to appeal, and treating this hearing as the hearing of the appeal, we allow the appeal, set aside the sentence of 5 years and 10 months and substitute therefor a sentence of 41/2 years.