HKSAR v. WONG CHI MING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.206
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 31st December 1997, this Applicant pleaded guilty in the Magistrates' Court to two charges of trafficking in heroin hydrochloride. The mixtures had a narcotic content of 108.68 grammes in the first charge and 1.35 grammes in the second.

2. The Applicant appeared in the High Court for sentence before Deputy Judge de Souza on 27th March 1998, and he was sentenced on these charges to terms of 6 years and 2 years' imprisonment respectively. The sentences were ordered to run concurrently. The Applicant now seeks leave to appeal against the length of his sentence on the ground that it is too severe and that the judge never considered the clear record and family background. More particularly, as Mr. Hemmings on the Applicant's behalf now submits, the judge had discounted the overall sentence of six years by 40%, having taken ten years as his starting point. He argues that a 9 1/2 year starting point would have been appropriate.

3. It is clear from the transcript that the judge had listened with the greatest care to the mitigation and had taken into account all relevant matters when he came to his approach to sentence, even though it may well be said that he was more than generous in his attitude towards the Applicant's apparent willingness to give his co-operation should future events take a certain course. In the event, a man called 'Ah Bee', for whom this Applicant had apparently been working, was not proceeded against.

4. If there is any criticism of the judge to be made, it is that he did not make it absolutely plain to the Applicant that he was being sentenced for the combined amount of drugs shown in the two counts. Instead of setting out separate starting points for counts 1 and 2, we feel that it would have been preferable if the judge had made it clear that the two counts were being looked at together. In such circumstances, the starting point, adopting this course as it so happens, could still be taken as between 9 1/2 and 10 years' imprisonment as the sentences were ordered to run concurrently.

5. The sentence of six years after discount was appropriate having regard to the mitigation that had been advanced and cannot in any sense be described as manifestly excessive despite the valiant arguments that have been advanced by Mr. Hemmings on the Applicant's behalf. The judge had considered a discount of about 40% to be appropriate. On any view, at least 9 1/2 years taken as a starting point would have been appropriate, and this Applicant has benefited to the extent of more than a one-third discount to his sentence.

6. A one-third discount is really to be regarded as the high watermark for a plea entered at the earliest opportunity, although it may be that on pleas being tendered upon arraignment, when these are not at the earliest opportunity, a judge may exercise his discretion to discount sentences by one-third having regard to the particular circumstances of those cases.

7. We feel that this application must fail and accordingly it is dismissed.