HKSAR v. YEUNG KIN MAN

CACC 20/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 20 OF 2000

(ON APPEAL FROM HCCC 316/1999)

__________________

________________

______________

J U D G M E N T

______________

Leong JA (giving the judgment of the Court):

1. The applicant pleaded guilty before Deputy Judge Z E Li in the Court of First Instance to two counts of trafficking in a dangerous drug. The first count involved a mixture of 1,391.06 grammes containing 804.15 grammes of heroin hydrochloride. The second count involved a mixture of 4,733.33 grammes containing 2,558.24 grammes of heroin hydrochloride. The combined weight of narcotic in the two counts amounted to 3,362.39 grammes. He was sentenced to 20 years concurrent imprisonment on each count. He now applies for leave to appeal against sentence.

2. The admitted facts are that the applicant was the driver of a private car intercepted by the Narcotic Bureau police officers on 15 May 1999. Inside this car, the officers found the dangerous drugs specified in the first count. On a subsequent search of the applicant's home premises, the officers found the dangerous drugs specified in the second count. The applicant's fingerprints were found on the materials wrapping the dangerous drugs. On both occasions when the drugs were found, the applicant admitted to the officers that the dangerous drugs belonged to him.

3. The Judge took a global approach to the total quantity of narcotics involved in the present case and adopted 27 years as a starting point. The Judge considered that substantial credit was due to the applicant for his guilty plea and full co-operation but, as the evidence was "overwhelming", he would give a discount of 7 years only. He saw no other reason for further discount and imposed the sentence of 20 years on each count.

4. The first ground in the perfected grounds of appeal complaining that the starting point of 27 years is too high is no longer relied upon by the applicant. Mr Wu for the applicant informed this court this morning that he agrees that the 27 years starting point is appropriate. Mr Wu only seeks to rely on his second to fourth grounds. These complain that the Judge was wrong in refusing to give the applicant the full usual 1/3 discount for his plea of guilty because the evidence against the applicant was "overwhelming'". Mr Wu submits that there are two lines of decisions in respect of discount for a plea of guilty.

5. One line of decisions is of the opinion that a guilty plea from a defendant caught "red-handed" or facing overwhelming evidence, is little more than a recognition of the inevitable and he should not be given the usual 1/3 discount despite he has pleaded guilty at the early stage of the proceedings. (HKSAR v YEUNG Ka-shing & Another [1997] 3 HKC 609; AG v WONG Kwok-wai [1991] 2 HKLR 384; R v LAI Kwok-hung [1994] 1 HKC 283)

6. The other line of decisions is that even in these circumstances, a full 1/3 discount should still be given. (R v LAI Kwok-hung; R v KWONG Kai-him Cr. App. No. 403 of 1995; HKSAR v WONG Ka-kuen & Another Cr. App. No. 35 of 1998)

7. Mr Wu submits that the present position should be that which has been settled inWONG Ka-kuen & Another. He submits that being caught red-handed or in circumstances where evidence against a defendant is overwhelming, does not mean that the applicant has no remorse and other prime considerations in giving a discount for a plea are the saving of court time and prosecution resources. He also submits that if the question of how much discount will be given on a plea is clear, defence counsel would be in a better position to advise a defendant on plea.

8. Mr Chapman for the respondent submits that the approach should be that in WONG Ka-kuen & Another which is the most recent authority of the Court of Appeal on this point and he concedes that the Deputy Judge was wrong not to have given the full 1/3 discount to the applicant.

9. In WONG Ka-kuen and Another, the second defendant pleaded guilty at the outset and in relation to the proper discount to be given for a plea at the outset, Stuart-Moore JA (as he then was) said:

10. We are of the opinion that the settled practice is that in WONG Ka-kuen and Another and the Deputy Judge was wrong to have given a lesser discount solely by reason of the overwhelming evidence against the applicant. We grant the application for leave to appeal against sentence and treat the application as the appeal. We allow the appeal and give the applicant the full 1/3 discount from the starting point of 27 years. We reduce the sentence to one of 18 years imprisonment on each count concurrent.

Representation: