HKSAR v. LEUNG KWAI SING

CACC484/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 484 OF 1998

(ON APPEAL FROM DCCC NO. 226 OF 1997)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of trafficking in a dangerous drug, it being alleged that on 2nd January 1997, at 234-236 Wanchai Road, he unlawfully trafficked in 54.59 grammes of a mixture containing 46.01 grammes of heroin hydrochloride. He pleaded not guilty to that charge but indicated that he was prepared to plead guilty to a charge of simple possession and when that charge was read before the court he entered his plea. He was sentenced to imprisonment for 3 years by Deputy Judge Duggan, the judge having said that he took a starting point of 4 years. The applicant now complains that he was not given the full discount of one-third which this court has indicated is appropriate when a person enters a plea to a charge at the earliest available opportunity.

2. The trial judge when sentencing said:

"I have carefully considered the submissions of defendant's counsel urging that you be sent to D.A.T.C. I have considered the reports and all other mitigating factors. In my view the appropriate starting point in this case should be 4 years' imprisonment. Defendant should receive a reduction of 25 per cent for his plea on the day of trial and he is therefore sentenced to 3 years' imprisonment."

3. We appreciate the approach which the judge took. He was following the line, which is one not infrequently followed and is a quite proper one, that if a person delays his plea until the day of trial he is not entitled to the full one-third discount. However, in the present case, he was only given the opportunity to plead to the charge of simple possession on the day of trial and he did, therefore, enter his plea at the earliest available opportunity. It is our view that, in such circumstances, he should receive the full one-third discount.

4. We will, therefore, allow the application, treat this hearing as the hearing of the appeal and vary the sentence from one of three years to one of two years and eight months.