CHUNG KAI KWONG v. R.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 972 OF 1996

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J U D G M E N T

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1. This is an appeal from Mr Wright, sitting at Eastern Magistracy, where the appellant was charged with possessing heroin. It was a relatively large amount of heroin for possession - 11.45 grammes - which the magistrate described as "unusually high purity". It may be, looking at Mr Wright's careful reasons which I sympathise with and understand, that he thought that this man should have been charged with trafficking, because he says : "I reminded myself that there is no such offence as unproven trafficking", but he describes the conditions in the area where the offences occurred as "a virtual supermarket for drug dependants".

2. The impression given is that the magistrate - and as I have said I well understand his view - thought that this person should have been charged with trafficking. He was surprised, he said, that he was in the Magistrate's Court. He did not say what starting point he adopted; but he sentenced him to two years' imprisonment. In my judgment, the starting point here should have been the maximum which he was permitted to give, namely two years. Whilst he is right in saying that on occasions the discount given can be less for a late plea, it must be remembered that encouragement must always be given to people to plead guilty. It saves an enormous amount of time and public expense. In my judgment, proper discounts should be given.

3. On the two years, I give a discount of eight months for the plea of guilty. This man is a drug addict with many, many previous convictions, I do not think that is in any way a mitigating factor, but perhaps it might explain the quantity of drugs he had in his possession. I reduce the sentence from one of two years' imprisonment to 16 months. To that extent, the appeal is allowed.