HKSAR v. NGAI WING KEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 431
(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 was convicted of being in possession of 9.65 grammes of a mixture containing 8.65 grammes of heroin hydrochloride and sentenced to 14 months and 15 days imprisonment by Judge Chua in the District Court.

2. He seeks leave to appeal against this sentence. Only one point arises for consideration. From the outset the Applicant expressed his willingness to plead guilty to possession of the dangerous drugs. The prosecution however was not prepared to accept this. Accordingly the Applicant was charged with trafficking in the dangerous drugs. At the conclusion of the trial the Judge was not satisfied that trafficking had been proved and found the Applicant guilty of simple possession. It has to be said that this was a very surprising outcome having regard to the number of packets found.

3. The Judge adopted a starting point of 18 months' imprisonment and in the circumstances was only prepared to grant the Applicant a 20% reduction for his willingness to plead to possession.

4. As we have previously indicated the correct approach to adopt in such a situation is to allow a defendant the full 1/3 discount.

5. We accept that the starting point was right. Giving the Applicant 1/3 discount will mean that the correct sentence for him in this case should have been one year.

6. The application is allowed. Treating it as the appeal we allow the appeal and reduce the sentence to one of 12 months' imprisonment. To this extent the appeal is successful.