LAI KWOK HUNG v. R.

IN THE COURT OF APPEAL

1993, No. 691
(Criminal)

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J U D G M E N T

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1. Mortimer, J.A. (giving the judgment of the Court): On 11th November 1993 the applicant pleaded guilty before Leonard J to one count of trafficking in what is commonly known as "lce" and one count of simple possession. On 25th November he was sentenced to nine years imprisonment on the first count and 15 months imprisonment on the second count, concurrent.

2. Earlier the applicant had pleaded in the Magistrates Court to one count of trafficking in 119.47 grammes of the drug, the amount which was found on him. Because he was saying some was for his own use, he was allowed to withdraw the plea before the magistrate when he appeared first in front of Duffy J. That was applied for by his counsel and acceded to by the judge, but with respect, the course taken was quite unnecessary. The offence is trafficking and the amount is only material to sentence.

3. In the event a new indictment was prepared and although the amounts were not specified in the indictment, there was no dispute that the amount involved was that found upon him - 119 grammes.

4. Before Leonard J the applicant chose not to give evidence as to the amount which was for his own use and so the matter was left to the judge to infer the quantity involved in trafficking in the first count and that involved in the second count. He did this from his own knowledge of the matter and from what had been said in the case of Ching Kwok-hung [1991]2 HKLR 125. He took the view that the vast bulk of the drugs was for trafficking and that only a small quantity was for the applicant's own personal use. That has not been challenged by Mr Macrae who appears for the applicant.

5. The facts are very simple. On information the applicant was stopped in Tsuen Wan on 9 March 1993. He had on him an envelope containing the drug. He admitted to the police that he had bought the drugs for $6,000 and said that it was partly for sharing with his friends and partly for his own consumption.

6. In sentencing the judge said that the applicant pleaded guilty at an early stage and he took as a starting point 11 years following the guideline in Ching Kwok-hung - the guideline for 70-200 grammes of "lce", being 10 to 14 years after trial. Having taken that as the starting point, he then reduced it by two years for the plea of guilty. In sentencing he said:

"On count one, taking the range of ten to fourteen years' imprisonment, it seems to me that an appropriate starting point would be eleven years' imprisonment. And having regard to the defendant's plea and his admission at an early stage, but having regard also the fact that his plea of guilt could be regarded as little more than a recognition of the inevitable, I think the maximum reduction reasonably possible would be a reduction of two years to nine years' imprisonment."

7. Mr Macrae takes two points. First, that the judge's starting point of 11 years was too high. Taking into account that the applicant had said from the beginning that this drug was not for sale, but for sharing with his friends and therefore the trafficking element was not an element as a dealer for profit. It would have been proper for the judge to take into account that this quantity of drug would not go on to the street for profit to the applicant. He submits that this would have merited a starting point of 10 years rather than 11 years.

8. We are unable to accede to that argument. The amount of the drug was very considerable. It had, according to the applicant, cost him $6,000. A large proportion of this drug was going to find its way into the hands of other people. We cannot fault the judge's starting point of 11 years.

9. It must be said, however, that Mr Macrae's main point was that the judge did not give sufficient discount for the applicant's plea of guilt at an early stage in the Magistrates Court. He submits that it is disappointing to see a judge, giving credit for a plea of guilt at an early stage but taking away from the applicant much of the benefit by saying that it could be regarded as 'little more than a recognition of the inevitable'. He submits that pleas of guilty are to be encouraged. He submits - and we accept - that there is no such thing as an inevitable plea nor an inevitable conviction.

10. If courts do not recognise that an early plea is an expression of remorse and if those who plead guilty and save time and expense to the public are not given full credit, there will be little benefit for an accused to plead guilty. For our apart, we also recognise that a failure to give proper weight to a plea puts counsel in difficulty in the advice he is to give to those who may be inclined to be remorseful and accept their guilt.

11. We think in giving only two years' reduction for the plea of guilt at the early stage in this case the judge did not give sufficient recognition to the remorse of the applicant and to the benefits of his plea. In those circumstances we accede to the application, allow the appeal and substitute for 9 years imprisonment 7 years imprisonment to reflect the plea that was tendered at an early stage.