HKSAR v. LEE CHI KEUNG

CACC641/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 641 OF 1998

(ON APPEAL FROM HCCC 473 OF 1997)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant faced one count of trafficking, it being alleged that he unlawfully trafficked in dangerous drugs on 2nd June 1997 at Mei Lai Road, Cheung Sha Wan, the drugs being a bag containing a mixture of 350.24 grammes containing 215.35 grammes of heroin hydrochloride. He pleaded guilty to that charge and was sentenced to imprisonment for seven years. He now seeks leave to appeal against that sentence.

2. The facts revealed that the police had been carrying out a surveillance operation and, in consequence of that, the Applicant was arrested by DPC 7596 and, upon arrest, he said it was Sai Wai who gave me $500 telling me to collect something for him. Under caution later he said that he was not sure what it was that Sai Wai had asked him to collect but he knew deep down that it would not be good things and thought it would be dangerous drugs, probably cannabis and pills. He said that he thought about dangerous drugs but he did not know what kind was inside the bag. He admitted having made deliveries for Sai Wai on four occasions.

3. When sentencing, the trial judge said:

"You, Lee Chi-keung (the applicant), and you, Yeung San-ming (the 2nd defendant), have very powerful mitigation. Both of you admitted your guilt. In your case, Lee Chi-keung, you were far more ready to admit it than Yeung San-ming was because you pleaded guilty at the first opportunity when your case came before a magistrate."

4. He went on to say that both of them had been prepared to give evidence against Lee Kwok-keung and that the jury's verdict indicated that the jury had, at least to some extent, accepted their evidence. He took into account that they would suffer some form of discrimination in prison because they had testified and that their life would be very difficult. He noted that the pleas, the cooperation and the willingness to testify should result in a substantial discount. When sentencing the applicant, he said that he would have sent him to prison for 12 years but that he was going to reduce that to seven years to reflect the plea, cooperation and willingness to testify.

5. The applicant was clearly entitled to a discount of one-third for plea which would reduce the sentence to eight years. He was then given a credit of only one further year on account of his cooperation and his testifying against the man Lee Kwok-keung. We are satisfied that overall he was entitled to a discount of 50% from the 12 years starting point. That would have reduced the sentence to one of six years which is the sentence that should have been imposed.

6. We will allow the application, treat it as the hearing of the appeal and order that the sentence be varied from one of seven years to one of six years.