R. v. LEE CHIU PANG

IN THE COURT OF APPEAL

1995, No. 93
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 24th March 1994 Lee Chiu-pang, the applicant, was stopped and searched at Kai Tai Airport by customs officers as he was about to board a plane for Japan. Concealed on him they found 6 packets of a mixture containing 14.36 grammes of heroine. When interviewed, he told the officers in a written statement that he was acting as a courier for a man named On Kee. He owed On Kee $40,000 and was to be paid $5,000.

2. He pleaded guilty to an offence of trafficking in the drug before His Honour Judge Britton in the District Court on 20th January 1995 and was sentenced to 5½ years imprisonment, a sentence which was reduced from a starting point of six years.

3. The plea was tendered on the basis that he was taking the drugs to Japan for his own use. It followed as he was exporting the drugs from Hong Kong that the offence fell within the definition of trafficking in the Dangerous Drugs Ordinance, Cap. 134. This, however, led to a Newton enquiry because the applicant was not pleading guilty to the gravamen of the Crown case. The Crown case was that this was a trafficking by way of export for profit and not a technical trafficking by way of exporting for his own consumption. The applicant gave evidence that the customs officers had concocted his statement. The judge, however, found that the applicant was lying and in due course sentenced him on the basis of his written statement to the customs officers. The judge followed sentencing guidelines in R v Lau Tak-ming, [1990] 2 HKLR 370. These suggest for offences of trafficking after trial of between 10 and 15 grammes 5-8 years imprisonment is the appropriate bracket. He acknowledged that the amount in this case - 14.36 grammes - would fall towards the bottom of the scale.

4. In determining the sentence, he took into account a number of factors. First, that exporting the drug to a foreign country was an aggravating feature. He said:

"Foreign Governments have the right to expect the courts of Hong Kong to deal sternly with people of this ilk so as to deter this appalling trade."

On that basis, within the appropriate bracket in Lau Tak-ming, he took six years as the starting point.

5. Secondly, he considered the plea of guilty. But on that, he declined to give any discount. He said:

"Mr Francis urges me to give him credit for his plea of guilty. This is one of those rare cases where I decline to do so. He was caught red handed trying to export drugs - a conviction was inevitable. Furthermore, one gives a reduction of sentence on a plea of guilty because it shows remorse. This defendant has shown no remorse. He resiled from the admissions he made in his statement under caution and tried to bluff his way out by tendering his plea of guilty on a wholly different basis from that of the Crown i.e. by saying that the cautioned statement was a concoction by the interviewing officer and that, really, he was taking the drugs to Japan for his own use. After a Newton enquiry I rejected that as a lie."

6. There was a background report, but the judge found it of little help - the applicant had not been honest with the probation officer.

7. The applicant also asked that he should be given credit for giving details of the supplier. The judge refused. The information that he provided up to that time had been quite useless and the person could not be traced. However, the judge reduced the sentence by six months on the basis that it was the first time that the applicant had been in serious trouble. The applicant seeks leave to appeal against that sentence.

8. Miss C. Remedios who appears on this application takes two substantive points. First, that exporting to a foreign country is not an aggravating factor to be taken into account as this was already a matter taken into account in the guidelines in Lau Tak-ming. That is not the view this Court takes of what was said in that case. The passage upon which Miss Remedios relies is to be found on p.387C when Silke V-P - giving the judgment of the court - said in setting the guidelines:

"We bear in mind that we are dealing with the trafficker and that the international trade in drugs needs to be actively discouraged."

He is not there saying that those who export and import drugs are not to be dealt with more severely than the local trafficker in Hong Kong. Clearly those who take drugs across borders must be dealt with more severely. As a member of the international community, here in Hong Kong we regard that as a particularly serious circumstance of an offence. The judge rightly took this into account as an aggravation. His starting point of six years was amply justified by the facts.

9. On the second ground, Miss Remedios is on firmer territory. She submits that in spite of the plea being tendered upon on a dishonest basis and that it was not a plea to the gravamen of the prosecution case, and that a major part of the credit to which the applicant would otherwise be entitled had disappeared, he ought still, as a matter of principle, have been given some credit for his plea. The basis she suggests is first, that by the plea to the possession of the drug, at least some of the court's time has been saved. Secondly, that the plea does acknowledge guilt and even pleas of this nature should be encouraged for there is no such thing as an inevitable conviction. She relies upon two cases in the Court of Appeal in England - R v David John Stevens (1986) 8 Cr.App.R(S) 297; a very different type of case from the one before this Court, in which Glidewell LJ, dealing with this point, said:

"... the judge said this, 'I give you some credit for your plea of guilty, but ... there cannot be the usual credit ... which arises when a complainant does not have to give evidence.' ...

On that point our view is that the learned judge was entitled to take the view he did. As I said during the course of argument, a defendant who pleads guilty is entitled to a discount from the sentence which would be passed upon him if he pleaded not guilty and were convicted for a variety of different reasons. One is that he is acknowledging his guilt, and this man did so. One is that he is saving time, and to that extent this man did so."

He continued:

"The judge was right to take the view, which he apparently did take, that the major part of the credit the appellant might otherwise have expected for a plea of guilty disappeared ..."

That was a case where there was a plea followed by an unsuccessful Newton enquiry. Similar principles are to be found in R v Jeffrey James Jauncey (1986) 8 Cr.App. R(S) 401.

10. We accept the principle that at least some credit ought to be given for a plea of guilty even after an unsuccessful Newton hearing. The amount may be small. It will depend on the circumstances.

11. Here the judge was wrong in principle when he declined to give any credit at all for the plea of guilty. At the same time, the major part of any credit which he might have earned for a plea to the prosecution case of exporting the drug for profit had gone. He showed no remorse. He saved some time at trial but not much time. He ought to be given some credit - but small credit - for his acknowledgement of guilt insofar as it went.

12. We are of the view that, taking his plea into account, the judge ought to have given him another six months' credit. Accordingly, we give the applicant leave to appeal against his sentence. We allow the appeal and reduce the sentence to one of 5 years imprisonment.