THE QUEEN v. VENATIUS OKOYE

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JUDGMENT

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Penlington, J.A.:

1. This is an application for leave to appeal against sentence following conviction on a plea of guilty to a single count of trafficking in dangerous drugs.

2. The facts were simple. The applicant was arrested at Kai Tak Airport on 17th March 1990. He was found to be carrying a briefcase which on examination contained a false bottom inside which was found 733 grammes of a mixture containing 650 grammes of salts of esters of morphine. Clearly this mixture was what is known as no. 4 heroin. The applicant was searched and three small pellets were found on him also containing heroin and as a result he was kept under observation. He later excreted 41 similar pellets. All these pellets contained 381 grammes of a mixture of 324 grammes of salts of esters of morphine. The total amount therefore was 1,114 grammes of a mixture of which 976 grammes was pure heroin.

3. The applicant pleaded guilty to the charge at the outset and made a statement to the police saying that he had stayed in a hotel in Bangkok with another Nigerian whom he Knew only as John. This other man had promised to lend him US$5,000 for bringing the pellets to Hong Kong. At that stage he denied knowing the contents of the briefcase out at the committal proceedings he pleaded guilty to the charge as laid.

4. He said that once in Hong Kong he was to contact John, who by that stage would have returned to Nigeria, and he would obtain further instructions from him. It was submitted that he had given as much help to the police as he could. He gave an address and a telephone number in Nigeria where he thought John could be contacted and he gave the address of the hotel in Bangkok. Not surprisingly however this information has not been found to be of any value to the police authorities in Hong Kong.

5. Mr. McLanachan, who appears for the applicant here and below, has told us that he does not dispute the starting point which was taken by the trial judge, Wong, J. as 15 years. Indeed on the authorities that was lenient. He does however suggest that insufficient discount has been given for the plea of guilty which, although it was clearly in the face of very strong evidence, was made at the earliest opportunity. He submits that even if the evidence was overwhelming, as quite clearly the trial judge thought it was, there was always the possibility of some technical defence being raised and that the defendant should be encouraged to plead guilty to save the inevitable cost of a trial. We agree and some discount should always be allowed but it depends very much on the facts of each particular case as to what that discount should be. In R. v. Yeung Wai Ming Crim. App. No. 437 of 1985 we referred with approval to R. v. Williams reported in The Times on 14th July 1983 where the Court of Appeal in England said that discount for a plea of guilty was a matter for the individual discretion of the trial judge and to be tailored to the needs of each particular case.

6. It was also suggested that because the applicant is a foreigner some discount should be given because he will not be able to receive visits from friends or relatives while he is in custody in Hong Kong. However we have now been referred to R. v. Shipra Crim. App. No. 627 of 1987, which says that is not to be considered as a factor in mitigation and that ground has been abandoned.

7. We are also satisfied that there is clear authority that the court should take the situation as it is at the time of sentence as regards help being given to the authorities. Here some help was given which clearly was of no great assistance. The applicant has said he would be willing to give evidence if John was ever brought to Hong Kong for trial, which seems extremely unlikely. That is a matter which would have to be dealt with by the executive if that eventuality comes to pass.

8. The main point here, indeed really the only ground which was strongly pursued, is the discount, which to reduce it to mathematical terms is 16.7%. That, it is suggested, is not within the discretionary range available to the judge which is 20 to 25%. We do not accept that the discretionary range is limited in that way and while the sentence of twelve and a half years is at the high end of that range and the trial judge did not specifically refer to the plea being made at the earliest opportunity, we do not consider it was such as to indicate an error in the exercise of his discretion by the trial judge and one with which we should interfere.

9. For those reasons the application for leave to appeal against sentence is refused.