HKSAR v. LUK KIN HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 549
(Criminal)

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J U D G M E N T

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

1. The Applicant pleaded guilty to two counts of trafficking in dangerous drugs. The total quantity of narcotic content was slightly in excess of 400 grammes. For the first count Deputy Judge Wilson adopted a starting point of 4 years and gave the Applicant a discount of one year for his plea, and for the second, he adopted 16 years as a starting point and gave the Applicant a discount of 4 years, and ordered that both sentences should be served concurrently.

2. The Applicant seeks leave to appeal against the sentences on the grounds that they were manifestly excessive and that he did not receive a full one-third discount for his guilty pleads.

3. It can be stated that in accordance with the guidelines laid down in R. v. Lau Tak-ming [1990]2 HKLR 370, the starting points adopted by the judge were correct. The problem which arises in this application is the amount of discount given to the Applicant for pleading guilty. It has been said on numerous occasions that the one-third discount is not to be regarded as a straight jacket. The judge does have a discretion reposed in him or her to depart from it. However, where there is such a departure it is necessary for the judge to give his or her reasons for it. In the present case, no reason was given by the judge. It is also not manifested from the papers why the Applicant should not receive the full one-third discount.

4. For this reason, we consider that we are justified in interfering with the sentences imposed. Treating the application as the appeal, we order that the sentence on the first count be reduced from 3 years to 32 months, and on the second, from 12 years to 10 years 8 months. These sentences will be served concurrently. To this extent, the appeal is successful.