HKSAR v. LEUNG CHO YI

CACC 385/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 385 OF 2008

(ON APPEAL FROM HCCC NO. 111 of 2008)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  This is an application for leave to appeal against sentence.

2.  A single point has been raised in the grounds of appeal which we can deal with extremely briefly.  This was that when Deputy High Court Judge Longley imposed a sentence of 2 years’ imprisonment on the applicant for trafficking in 104.99 grammes of ketamine to which the applicant had pleaded guilty, a discount of only 25% was given instead of a reduction of one-third which is usually given to those who plead guilty.  To this extent, it was argued that the judge had erred in principle.

3.  Mr Ian Polson, who also appeared for the applicant in the court below, submitted that the judge had not given a valid reason for departing from the usual practice.  His argument was that, originally, the applicant faced two counts of trafficking in dangerous drugs.  The offences were alleged to have taken place at the same location on 7 October 2007.  These were joint charges with Wong Kok-fung (D1), who pleaded guilty to both counts of trafficking.  Count 1 related to trafficking in 31.22 grammes of cocaine and count 2 related to trafficking in 8.22 grammes of cocaine and in 104.99 grammes of ketamine.  It was this quantity of ketamine to which the applicant eventually pleaded guilty when the prosecution agreed to drop the allegations of trafficking in cocaine contained in counts 1 and 2 so far as she was concerned. 

4.  When this development occurred, Mr Polson submitted that the prosecution then chose to file an amended indictment containing a single count against the applicant of trafficking in the 104.99 grammes of ketamine to which, as he put it, she pleaded guilty “at the first opportunity”.

5.  However, this was not all that happened and we need to go back a little in time to see how this case evolved.

6.  The first day this case was listed for trial in the Court of First Instance was 10 November 2008.  On that day, the applicant challenged the admissibility of her two video-recorded interviews in which the applicant had admitted trafficking in ketamine.  A voire dire was held in which six prosecution witnesses were called and the applicant herself gave evidence.  On 11 November 2008, the judge gave a ruling that the evidence of the interviews was admissible.  Without that evidence, there would have been no case against the applicant.

7.  There then followed a further application on the applicant’s behalf to edit portions of the interviews.  This led to a further adjournment of proceedings.  On 12 November 2008, the submissions regarding editing were heard and the judge ruled against the applicant.

8.  At this stage, a further adjournment was sought on the applicant’s behalf and it was only then that the applicant’s counsel made an offer to plead guilty to trafficking in ketamine so long as the allegations of cocaine trafficking in counts 1 and 2 were dropped.  The prosecution indicated its acceptance of this offer and a plea of guilty was taken to the 2^nd count on the original indictment to trafficking in the ketamine.  There was no amended indictment even though the prosecutor at trial had suggested one.

9.  Ms Sin, on the respondent’s behalf, submitted, therefore, that as no offer to plead guilty had been made before the judge had ruled the evidence concerning the applicant’s admissions was admissible, the judge was fully entitled to discount the applicant’s sentence by less than the usual one-third.  Indeed, we consider that in this situation, the discount should usually be in the order of 20% as the plea of guilty will only have been entered after an unsuccessful attempt has been made to exclude the evidence of a confession.  With this in mind, the applicant in this case was treated very leniently.

10.  The judge took a starting point of 2 years and 8 months’ imprisonment and reduced this by 8 months saying:

“You are not entitled to the discount of one-third to which you would have been entitled if you had pleaded at the first opportunity.”

11.  The course adopted by the judge was entirely appropriate although, as we have indicated, the discount he actually gave to the applicant was too generous.

12.  This application, therefore, is dismissed.

13.  There was no basis for this application at all.  Accordingly, we order that the respondent’s costs should be paid by the applicant.  These costs are to be taxed if not agreed.