HKSAR v. FUNG CHI WING

HCMA 152/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 152 OF 1999

(On appeal from NKCC 8348 of 1998)

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J U D G M E N T

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1. On 12 January 1999 the Appellant pleaded guilty to an offence of possessing 0.15 grammes of heroin at North Kowloon Magistracy.

2. The magistrate called for a Drug Addiction Treatment Centre report prior to sentence.

3. That report was unfavourable as the Appellant had been treated unsuccessfully in respect of his 20 year drug addiction on a number of previous occasions.

4. Accordingly the magistrate concluded a sentence of imprisonment was appropriate.

5. He took a starting point of 12 months imprisonment. That starting point accords with authorities such as R. v. LI Siu Man M.A. 248/96 and R. v. LAM Wai Ping M.A. 239/97 where the courts have approved a starting point of sentence for the possession of small quantities of heroin as being 12 months after trial.

6. The only matter before the magistrate as to mitigation was the Appeallant's plea of guilty.

7. That plea of guilty was belated in the sense that the Appellant did not plead guilty until the day of trial.

8. For that reason the magistrate allowed a discount of only 3 months, or one quarter, resulting in the sentence of 9 months imprisonment. It is that sentence that the Appellant appeals against before me today on the basis that it was too severe.

9. The learned magistrate said in his Statement of Findings that if

the Appellant had pleaded guilty at the first opportunity, that is on the first

occasion or occasions when he had appeared in court, he would have allowed a full 1/3 discount.

10. Effectively as a result of the Appellant's delayed plea there was some waste of time and resources. The magistrate in allowing a discount for the Appellant's plea of less than 1/3 gave reasons for doing so. He specified that reason as being the belated plea of the Appellant. That belated plea was not occasioned on the face of it by any complexity in the case or by any matter of a technical nature which would justify such a delay.

11. As a matter of common sense a reduction is given in sentence for a plea of guilty because it both shows some remorse in the offender and saves the courts and prosecuting authorities time and expenditure. That is rewarded.

12. If the plea of guilty is entered at a late time, after a hearing date has been set down and cannot be vacated usefully then both those factors in mitigation are reduced in importance.

13. In my view the magistrate was not wrong in principle in allowing only a quarter reduction in sentence from the starting point. That starting point itself was appropriate to the quantity of drugs involved.

14. There is no merit in this appeal and it is dismissed.