HKSAR v. LEE WAN

CACC 284/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 284 OF 2002

(ON APPEAL FROM DCCC 175 OF 2002)

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J U D G M E N T

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Hon Jackson J: (giving the judgment of the Court)

1. The Applicant who is aged 63 appeared in the District Court charged with one offence of trafficking in dangerous drugs particularized as 66.19 grammes of a mixture containing 21.61 grammes of heroin hydrochloride.

2. He initially pleaded not guilty and his trial commenced before His Honour Judge Day. When all of the evidence, both for the prosecution and for the defence had been called but prior to closing speeches, the Applicant changed his plea to one of guilty and he was thereupon sentenced to 6 years imprisonment. In reference to his late plea of guilty the learned District Judge said this:-

"A guilty plea offered at this stage is no more than a recognition of the inevitable - that you are about to be convicted. You will get no credit for your guilty plea."

3. The Applicant seeks leave to appeal against his sentence.

4. The facts of the offence can be very shortly stated as follows:-

The Applicant was stopped at the entrance of the Jordan MTR Station by two police officers who saw him acting in a suspicious manner. Upon a body search, the police officers found from the inside pocket of the Applicant's suit 5 envelopes containing 7 packets which, in turn, contained the mixture and heroin which I referred to above.

5. The tariff sentence for trafficking in between 10-50 grammes of heroin following upon conviction after trial lies between 5-8 years' imprisonment (R v. Lau Tak-ming & Ors [1990] HKLR 370).

6. In his written grounds of appeal the Applicant in essence said this (and I paraphrase it):-

"1. I am old and fragile. The judge failed to consider my health and age.

2. The judge when delivering his judgment said, "If a guilty plea was entered at the outset, a term of 3 years and 6 months could be passed." If this is calculated on the basis of a guilty plea with a discount of one third of the term, then even if it is a plea of not guilty, it will at most attract an imprisonment of 5 years and 3 months only. In that case, a term of 6 years amounts to an excess of 9 months in sentencing.

3. The trial was originally set down for two days. In order to show my repentance as soon as possible, I pleaded guilty ... I did so early in the morning on the second day. I just wanted to save public money and not to waste the court's time. Under such circumstances, it would be justifiable to give me a sentence reduction if not a discount of one third.

4. According to what is stated in the guidelines, the term of 5 years to 8 years will be imposed if a mixture containing 10g to 50g of heroin hydrochloride is involved. On the basis of the above figures, sentencing me to a term of 6 years goes beyond the guidelines stated. The term of just 5 years and 6 months was imposed in the same court on the same charge involving a mixture containing 23.85g of heroin hydrochloride and this is unfair to me."

7. It may be apparent from those submissions of the Applicant that he is lacking neither in intelligence nor in knowledge of sentences imposed for offences of trafficking in dangerous drugs and that may not be surprising in that - albeit it is a very long time ago - he was sent to prison for a term of 9 years in 1979 for manufacturing such drugs. So far as we can ascertain at no stage did the learned judge tell the Applicant that had he pleaded guilty at the outset of the trial, he would have been sent to prison for 3 years and 6 months. Certainly there is nothing on the court record or in the judge's reasons to suggest that he did say that. When asked about that matter this morning, the Applicant says to us that was in fact what was interpreted to him or was said to him via the interpreter when the judge was giving his reasons.

8. As to the Applicant's apparent reference to another case in which a defendant was sent to prison for 5 years and 6 months following upon his conviction after trial for trafficking in 23.85 grammes of heroin, that is of no assistance to the Applicant because the circumstances of that case and of that defendant were undoubtedly different to those of this case and of this applicant.

9. In written response to the Applicant's plea concerning the fact that no discount was given for the late guilty plea Mr Lee for the Respondent says, this:-

"In the case of the HKSAR v.CHU Shi-keung [2001] 1 HKC 576, it was envisaged that in extremely rare cases there may be no discount given for a guilty plea.
It is submitted that the present case falls within one of those extremely rare cases ...
It is submitted that in the circumstances of this case, where the plea came so late that in effect no court time or public money were saved, and when the conviction was almost inevitable, it was not wrong for the Judge not to give any credit to the applicant for the plea which was not a demonstration of any remorse."

10. With that, we respectfully agree and accordingly the application is dismissed.