HKSAR v. YUEN HING YU

HCMA765/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 765 OF 1998

(On appeal from NKC3849 of 1998)

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J U D G M E N T

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1. The appellant, YUEN Hing-yu, was convicted by Mr Alan Wright, Permanent Magistrate sitting at North Kowloon Magistracy, on 20 July of this year on his own plea of guilty of an offence of possession of a dangerous drug. The dangerous drug in question was heroin. It was quite a substantial quantity. The mixture in total weighed over 17 grammes and the heroin content of it was 16.82 grammes. It would appear that Mr Wright accepted that this represented the appellant's own personal supply of dangerous drugs.

2. The appellant is a drug addict. He has previous convictions for possession of dangerous drugs and has twice been sent to a Drug Addiction Treatment Centre.

3. In sentencing the appellant to serve 27 months' imprisonment, Mr Wright took as his starting point a sentence of 3 years' imprisonment after trial, that being the maximum sentence a magistrate can impose.

4. He commented that the amount involved in this case was the highest he, as a magistrate, had ever seen before him. He took it as being a worse case scenario, deserving of the maximum sentence.

5. It is now well established that people who possess dangerous drugs for their own consumption and are charged with a possession, not a trafficking, offence can, in appropriate circumstances, be sentenced to serve meaningful periods of imprisonment. This is not only to deter them from taking dangerous drugs, but also to recognise that the presence of a large quantity of dangerous drugs in the hands of a drug addict presents a latent risk that he may be tempted to traffick in them.

6. To my mind, a sentence of 3 years' imprisonment for this offence after trial, given the quantity of the dangerous drugs, would in no way have been regarded as excessive. Mr Wright reduced it by 25 per cent to take account of what he called "the belated plea". The plea was belated in this sense: the appellant did not plead guilty at the earliest opportunity, he indicated a plea of not guilty at an earlier remand hearing and a date for trial had been set. Obviously the lists in the Magistracy had been cleared to accommodate a contested case. By entering his plea of guilty on the day set down for the hearing a substantial amount of the magistrate's time was wasted. In addition the human resource assets of the police force were wasted.

7. The appellant says that the reduction of 25 per cent he received was unfair and not enough. I am aware that the Court of Appeal, on many occasions, has said that those who plead guilty are entitled to a discount in sentence and have indicated that early pleas of guilty are to be rewarded with discounts of up to one-third of the sentence that would have been imposed after trial. However, in a case such as this, where the plea of guilty comes very late, on the day set down for a contested trial, I do not believe that a one-third discount should be given automatically. It is incumbent upon magistrates to take account of the fact that the defendant has wasted resources and to reduce the amount of the discount to reflect that, as Mr Wright did here. I cannot say that he was wrong to give a discount of 25 per cent, as opposed to a discount of one-third.

8. Mr Wright also bore in mind that the appellant is a drug addict with a long string of previous convictions, and that he was not dealing with a first-time offender. Had the appellant been a first-time offender then, even though he had entered a late guilty plea, a higher discount may well have been justified, but it was not justified here.

9. I am perfectly satisfied that Mr Wright's sentence is in accordance with established sentencing principle applied in Hong Kong, and that the discount given was also in accordance with established sentencing principle. The appellant's appeal against sentence is dismissed.