HKSAR v. SHAER CHUN KEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.284
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty in the Magistrates' Court to trafficking in a mixture containing 354 grammes of heroin hydrochloride. On 28th April 1997, he was sentenced by Deputy Judge Lugar-Mawson to 9 1/2 years' imprisonment. He now seeks leave to appeal against his sentence.

2. The facts formed a familiar pattern. Following a short period of surveillance, police were able to arrest the Applicant in possession of the drugs. He immediately admitted he was carrying 'white powder'. Also in his possession was a set of keys that opened the doors to a flat where various drug-related items were found. The Applicant admitted being a courier for someone called 'B Gor' and that he sometimes packed the drugs.

3. After a very comprehensive and eloquent speech in mitigation advanced by Miss Remedios, the trial judge rightly stated that everything that could have been said on behalf of the Applicant had been said. There is no doubt at all that he took it into account, and the complaints which are made by this Applicant in his letter setting out his grounds of appeal to this court are without the slightest foundation.

4. The trial judge took 14 years as a starting point for sentence, which was perfectly proper and in accordance with the guidelines. He then reduced the sentence by almost exactly one-third and said:

"I am going to reduce it by one-third, or nearly one third. You are going to prison for nine years and six months."

5. As this court has often said in recent times, where a judge is giving less than the full one-third discount following a plea of guilty, it is important to indicate why that is so. Here the full discount would have resulted in a sentence of nine years four months, and we are unable, in the absence of any reason given by the judge, to see why that sentence should not have been imposed. This is no criticism of the judge because it has long been accepted with lengthy sentences that the term is measured in years or half years. However, we can see no reason why a prisoner should be penalized by a rounding up of the figure where he has been told that he has earned the full one-third discount.

6. Accordingly, we shall give leave and, treating this hearing as the appeal, we shall allow the appeal to the extent of making a reduction in the sentence by two months to one of nine years and four months.