HKSAR v. Yeung, Lung and Another

HCMA 684/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 684 OF 2016

(ON APPEAL FROM TWCC 1821 OF 2016)

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BETWEEN

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J U D G M E N T

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1.In the Magistrates’ Court, the 1^st Appellant was the 1^st Defendant and the 2^nd Appellant was the 2^nd Defendant.  I will refer to them as “D1” and “D2” respectively. 

2.D1 pleaded guilty to a charge of assaulting a police officer and a charge of inhaling a dangerous drug.  D2 faced only a charge of inhaling a dangerous drug.  He was convicted after trial on that charge. 

3.For assaulting a police officer, the Magistrate sentenced D1 to 3 months’ imprisonment by taking a starting point of 4 months and reducing it to 3 months for his guilty plea.  For inhaling a dangerous drug, the Magistrate sentenced him to 12 months’ imprisonment by taking a starting point of 15 months and reducing it by 20 per cent, to 12 months for his guilty plea.  Those two terms were made concurrent with each other but consecutive to a suspended sentence of 6 months’ imprisonment which the Magistrate activated.  So D1 received a total of 18 months’ imprisonment to serve.  He appeals against his sentence of 12 months’ imprisonment for inhaling a dangerous drug. 

4.D2 was sentenced to 15 months’ imprisonment on the single charge which he faced and was convicted on after trial.  He appeals against this sentence.

5.The circumstances of the charge of inhaling a dangerous drug which the Appellants faced were that on 3 April 2016 they were together in a staircase each inhaling methamphetamine hydrochloride (commonly known as ‘Ice’).

6.By the Perfected Ground of Appeal Against Sentence filed on behalf of the Appellants, it is complained that the starting point of 15 months’ imprisonment adopted for each of them on the inhaling a dangerous drug charge is manifestly excessive and/or wrong in principle.

7.As to D1’s background, the Magistrate said:

“ 4. D1 is single. He was born and raised in Hong Kong. He has received education up to Form 3. He works as a transportation or logistics worker earning around $12,000 per month. He lives with his parents. His father is 60 years old and is a crane operator. His mother is a housewife and is 58 years old. He contributes around $4,000 to $5,000 to his family per month. D1’s supervisor at work promised D1 that his employer would continue to employ D1 upon his release from custody.”

8.As to D2’s background, the Magistrate said this:

“ 5. D2 works part time as a transportation driver, earning $9,000 a month. Schooling takes him up to Form 3. Both of his parents, aged 63 and 59, are unemployed. He also lives with his younger brother, who is 26 years old and works as a computer parts technician. D2 wants to continue working to support his family. D2 asks the court for a probation order.”

9.Then the Magistrate said this in relation to both D1 and D2:

“ 6. Upon conviction of the defendants, I obtained a DATC report in respect of each of them. The reports show that neither of the defendants has drug addiction, so neither of them is suitable for being detained in a drug addiction treatment centre.

7.  Inhaling dangerous drugs is similarly as serious as simple possession.  The facts show that the defendants inhaled methamphetamine (ice).  The starting point for mere possession of a quantity of methamphetamine which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.”

10.Each Appellant had a number of previous convictions including a number for possession of dangerous drugs.  The starting point of 15 months’ imprisonment which was adopted for both Appellants on the inhaling a dangerous drug charge is one which was enhanced by reason of his previous convictions for possession of dangerous drugs, an offence which the Magistrate justifiably regarded as similar to inhaling a dangerous drug.

11.The last of D1’s previous sentences for possession of dangerous drugs was passed on 27 January 2016.  The last of D2’s previous sentences for possession of dangerous drugs was passed on 30 December 2015.  The Appellants’ present offence of inhaling a dangerous drug was, as I have said, committed on 3 April 2016. 

12.Each Appellant having a number of previous convictions for a similar offence and the last of which previous conviction being recent, some enhancement of the starting point for his sentence for his present offence of inhaling a dangerous drug was warranted. 

13.Was the starting point of 15 months’ imprisonment within the appropriate range? 

14.Being in honest, gainful employment, which each Appellant was, is recognised by the courts as a factor in favour of a person being sentenced for an offence of this nature.  On the other hand, it was in a place to which members of the public, including children, had access that the Appellants inhaled dangerous drugs. That is a factor which the courts consider to be an aggravating factor.

15.All things taken into account and balanced, I consider the starting point of 15 months’ imprisonment within the appropriate range, albeit at the upper end of that range.

16.Accordingly, each appeal is dismissed.

Ms Winnie Mok, SPP of the Department of Justice, for the respondent

Mr Lawrence Hui, instructed by the Legal Aid Department,

for the 1^st and 2^nd appellants