HKSAR v. WONG CHEUNG LEE

-----------------

-----------------

JUDGMENT

-----------------

Nazareth V-P (giving the judgment of the Court):

1. This matter was originally listed before us as an application for leave to appeal against sentence out of time. However, when the matter came on, Mr Simon Tam for Director of Public Prosecutions informed us that the applicant had originally in 1997 applied for leave to appeal against sentence and later abandoned it. It transpired from what Mr Tam informed us very properly that the applicant appears to have done so in the context of the Legal Aid Department refusing him legal aid. Plainly that must have been in pursuance of their view that there was no merit in the grounds he proposed to rely upon. This on the basis of R v Wong Wai leung [1990]1 HKC 144 could, it seems to us, have entitled this Court to give the applicant leave to withdraw his notice of abandonment as being a nullity. We accordingly heard the applicant on the matter. He contends that he did indeed abandon his application for leave on that basis. Accordingly, it appears to us that he did not abandon his original application on the basis of a deliberate and informed position, but rather upon being misinformed. We therefore granted him leave to withdraw his application for abandonment, treating it as a nullity. We then proceeded to hear his application. As we have said, it was an application made out of time.

2. He was charged with trafficking in dangerous drugs contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134), the particulars being that he trafficked in a quantity of 186.84 grammes of a mixture containing 46.01 grammes of heroin hydrochloride. Upon his plea of guilty the judge called for a background report which discloses nothing of significant assistance to the applicant. The judge then took a starting point of 7 years which was entirely proper having regard to the tariff in R v Lau Tak-ming [1990]2 HKLR 370 which provides a band of 5-8 years for between 10 and 50 grammes of narcotic. Then taking into account the matters advanced in mitigation, he reduced that period of 7 years to 5 years.

3. The applicant's main ground in his application is that he was not given the full usual discount of one-third. Mr Tam has worked out the discount at 28.5%. Be that as it may, what the record did not disclose was that in fact the applicant appeared before the District Court for plea on 10 February 1997 and he pleaded not guilty. He then appeared again for trial on 15 or 17 April 1997. This time, presumably having received legal advice, he pleaded guilty. The full discount of one-third is regarded as the high watermark of a bare plea of guilty and an admission made at the earliest opportunity. The applicant appears to appreciate that in saying that he gave assistance and saved the court's time and taxpayers' money. But in fact he did not fully do so. The matter had to be listed for trial with the time of witnesses, the Court and counsel wasted. The judge was clearly in the circumstances entitled not to give him the full discount of one-third but to reduce it; and it was reduced by the very small proportion apparent. In these circumstances there is no merit in the application.

4. Before leaving the matter, we have to make the observation that had the judge mentioned this matter, as indeed he should have, we would not have unnecessarily concerned ourselves with the apparent breach of principle in not having regard to the usual discount for a plea of guilty.

5. Leave to appeal out of time is refused.