R. v. WONG NGAI HUNG

IN THE COURT OF APPEAL

1995, No. 596
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 21 July 1995 the applicant pleaded guilty before Deputy Judge Wright to trafficking in a mixture containing 39.22 grammes of heroin. That trafficking had taken place on 6 April 1995. The judge sentenced him to 5½ years imprisonment against which he applies for leave to appeal.

The facts

2. The applicant was arrested in the street with drugs in his pocket. They were contained in 18 plastic packets.

The sentence

3. In sentencing the judge recognised that the applicant was entitled to credit for the plea of guilty which he entered but he said that the amount of credit that he would receive should be reduced for two reasons. The first being that the plea had not been made at the first opportunity but only on the day of trial; and secondly, that it had been made in the face of overwhelming evidence. The judge took as his starting point 6½ years imprisonment. It was within the guidelines laid down by this Court in Lau Tak Ming. But having regard to the two matters to which we have referred, he reduced the sentence by only one year.

The application

4. This Court has said on many occasions that - other things being equal - credit for a plea of guilty ought to be in the range of one-third reduction but the matter is within the discretion of the sentencing judge when he takes into account all the surrounding circumstances. It is therefore not wrong for him to take into account the time when the plea is made.

5. So, dealing with the first matter, it appears that in the District Court an accused person will appear first on a plea day. It is an opportunity for him to plead guilty if he wishes. But in this particular case, had the judge made inquiries, he might have discovered that there was some confusion in the applicant's mind at the time of that plea day and that the advice which was then available to him was limited. It may well be the point taken against the applicant by the judge that he had not made a plea on the first opportunity is not sound. But in any event, the merit of a plea of guilty, even just before the commencement of a trial, is considerable. Credit should be given even at time because there is still saving of time and expense although obviously not as much as if a plea is made at an earlier stage.

6. So far as the second matter is concerned - that the plea was made in the face of overwhelming evidence. Again, that is a matter that the judge can taken into account. What weight it should be given depends upon all the circumstances. But even if the evidence is overwhelming, it does not mean that there should be minimal credit. It is rightly said that there is no such thing as an open-and-shut case. This is particularly so in drugs cases. The entering of a plea - even with overwhelming evidence - is of more than minimal weight.

Conclusion

7. In the circumstances we are satisfied that the judge did not give sufficient credit for the plea in this case. He ought to have given it greater weight. The sentence passed was wrong in principle.

8. We allow the application and treat this hearing as the appeal. We allow the appeal. We reduce the sentence of 5½ years imprisonment to one of 4½ years imprisonment.