R. v. LEE KWONG WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 282 OF 1996

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J U D G M E N T

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1. The appellant pleaded guilty to one count of trafficking in a dangerous drug and was sentenced to two years' imprisonment. He now appeals against sentence.

2. The facts are straightforward. The police conducted a road block on the day in question. They stopped a car in which the appellant was travelling as a passenger sitting next to the driver. The appellant was searched and found to have one plastic bag and another 26 packets which contained dangerous drug. The amount of drug involved was 27.84 grammes of mixture containing 3.8 grammes of heroin. The appellant admitted to the police that he was taking the dangerous drugs for another person. At the trial, he pleaded guilty. The Magistrate called for a DATC Report, Probation Report, Training Centre and Detention Centre Reports.

3. One of the grounds of appeal is that he was not given the opportunity to mitigate. In fact, that is not the truth. All along, he was represented by duty lawyers. On the first occasion when he pleaded guilty, Counsel mitigated on his behalf and it was adjourned on a number of occasions until all the reports were ready. The record further says : "... the appellant now before me accepted that. He, through his Counsel, indicated to the court that he preferred to go to prison rather than to be detained in a Training Centre."

4. The appellant is only 20 years of age. He is living with his parents. He was at one stage unemployed. According to him, his girlfriend was sick and that is why he had to traffick in the drugs. He had to find a job which would give him a good salary. There are also materials in the reports, particularly the Probation Officer's Report, which give an insight into his family background. He now repeats many of them to me in this appeal. It appears that he owed people some money and he was asked to make deliveries of drugs. According to him, his father is in his 60's. He had a big family in China and if he did not repay the debt, his family would be harassed. He was also told that his grandmother is now in a poor health and he was now genuinely remorseful. He also complained that he is only given 20% discount rather than the normal 33%.

5. The learned Magistrate adopted a starting point of 30 months and finally reduced it to 2 years' imprisonment. I must say the mitigating factors which the appellant put before me today have all been contained in the reports and no doubt, the learned Magistrate must have been made aware of those materials. Suffice it to say that in this appeal, I do not find them to be very good mitigating factors. The fact that a person owes people money does not mean that he has to traffick in drugs. That is certainly no excuse.

6. It is true that he was not given one-third discount for his plea. However, that sort of discount is only given to those who are genuinely remorseful and who saves the court's time and everybody's time by a plea at the earliest possible stage. In the present case, the appellant did admit to the police when he was apprehended and searched and found to have the drugs. On the first two occasions when he appeared before the court, he did not plead because he was not required to do so. But on 18th October when a plea was to be taken, he did not do so. The appellant was also caught "red-handed". I think it is difficult to see what other alternative he could have apart from pleading guilty. In the circumstances, I think the discount given by the Magistrate to him is perfectly adequate.

7. Having looked at the circumstances of this case, I do not think the learned Magistrate was wrong in principle in applying the starting point of 30 months and reducing it to 2 years. Nor do I think that the period of sentence is in any way manifestly excessive. The appeal is therefore dismissed.