HKSAR v. Sharma, Rahul

HCMA 101/2022
HCMA 102/2022
(Heard together)

[2022] HKCFI 1643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 101 OF 2022

(ON APPEAL FROM WKCC 4912/2021)

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BETWEEN

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 102 OF 2022

(ON APPEAL FROM KCMP 4913/2021)

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BETWEEN

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Before:  Deputy High Court Judge Woodcock in Court

Date of Hearing:  18 May 2022

Date of Judgment:  2 June 2022

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J U D G M E N T

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1.The defendant pleaded guilty to 2 charges of possession of a dangerous drug contrary to section 8(1)(a)  and (2)  of the dangerous drugs Ordinance, Cap 134. On 25 January 2022, he was sentenced to a total of 4 months’ imprisonment. He now appeals against his sentence.

HCMA101/2022

2.On 24 September 2021 outside exit C2 of Sham Shui Po MTR station, Kowloon, Hong Kong the defendant was in possession of one plastic bag containing 0.57 g of a crystalline solid containing methamphetamine hydrochloride, a drug commonly known as “ice”.  He was given police bail after his arrest.

HCMA102/2022

3.On 25 September 2021, the following day and whilst on police bail, outside Shop G, 203 Cheung Sha Wan Road, Sham Shui Po, Kowloon the defendant was arrested again for possession of 0.20 g of a solid containing cocaine.

Brief Facts admitted

4.On 24 September 2021, the police saw the defendant acting suspiciously and drop a plastic bag containing the ice on the ground.  It dropped out of his right hand.  He was then immediately arrested.  On 25 September 2021, the police saw the defendant acting suspiciously again with another male and stopped to search him. During that search, the police found the cocaine in a plastic bag in his right sock.  Under caution for each offence the defendant admitted that the drugs were for his own consumption.  He pleaded guilty and admitted the facts.

Mitigation advanced

5.The sentencing Magistrate was told that the defendant had appeared in court on 10 previous occasions in respect of 15 offences.  2 of those previous convictions were for possession of dangerous drugs.

6.She was also told that the defendant is 30 years old, single and a Form 8 Holder who arrived in Hong Kong in 2014 and seeking asylum.  She quite rightly recognised that his best mitigation were his guilty pleas.

7.The defendant emphasised that his mother in India had health problems and was sick.  It was because he could not assist her physically or financially, he was under tremendous stress and took drugs to alleviate that stress.

Reasons for Sentence

8.Before sentencing, the defendant was remanded for a Drug Addiction Treatment Centre report.  It showed that he was a drug addict.  However, because of his status in Hong Kong, a visitor, statutory supervision after treatment was not viable.  Therefore, a Drug Addiction Treatment Centre order was not recommended.

9.The Magistrate referred to the relevant case of Mok Cho Tik (2001)1 HKC 261 where Stock JA, as he then was, said the Court of Appeal was of the view that in dealing with the sentence for mere possession of a quantity of dangerous drugs which a bone fide user would normally have in possession should be in the range of 12 to 18 months.

10.The Magistrate took into account the small quantities of ice and cocaine in the 2 offences but also took into account the fact that the appellant had committed the 2^nd offence whilst on bail for the 1^st offence; both committed on 2 consecutive days.  That is an aggravating factor and she correctly saw that as a blatant disregard of the law.

11.She took a starting point of 3 months’ imprisonment for HCMA101/2022 and reduced it by 1/3 to 2 months for his guilty plea.  She took a starting point of 4.5 months’ imprisonment for HCMA102/2022 to reflect the aggravating factor of committing this offence whilst on bail.  She reduced that to 3 months for his guilty plea.

12.She found it appropriate after taking into account the totality principle to order one month of the 1^st offence to run consecutively to the 3 months of the 2^nd offence. She sentenced him to a total of 4 months’ imprisonment for both offences.

Grounds of Appeal

13.The defendant was not legally represented at this appeal.  He advanced the following grounds of appeal;

a.  the sentences were too severe;

b.  his previous convictions related to herbal cannabis and these were the 1^st offences involving synthetic chemical drugs;

c.  therefore, the sentences were too high for the 1^st time he was caught with ice and cocaine;

d.  lastly, his mother in India was sick which explained his drug habit and should be taken into account.

Discussion

14.This appeal is an appeal by way of rehearing and I referred myself to the record to see whether there is any error made by the sentencing Magistrate in her approach.  I find no flaws in the Magistrate’s reasons for sentence.  There is no merit nor any justifiable grievances in the appellant’s contention that his sentence was too severe.  The Magistrate correctly and properly followed and applied the guidelines in sentencing for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession.

15.The Magistrate was clearly aware of the range of 12 to 18 months set out in Mok Cho Tik. She was aware that despite the normal range of 12 to 18 months’ imprisonment, it did not exclude imposing sentences of lesser terms for small quantities where the circumstances warrant.  This is clearly what she had in mind when imposing the starting points of 3 months and 4.5 months.

16.The sentencing Magistrate correctly identified the aggravating factor in this case; the appellant committing the 2^nd offence very shortly after his arrest for the 1^st offence and whilst on bail.

17.In respect of the individual sentences she imposed, I find no error; they are in line and consistent with the authority quoted and neither excessive or wrong in principle.  The fact they may have been his 1^st convictions relating to ice and cocaine, synthetic chemical drugs is neither here nor there.  They are his 3^rd and 4^th convictions for possession of drugs.

18.This brings me to the order that they were to be served partly consecutively.  The 2 offences are quite separate in particulars and in timing.  It does add to the overall culpability of the appellant’s conduct.  Concurrent sentences would have been wrong in principle.  A person who commits an offence cannot expect to do it again without impunity especially whilst on bail.

19.I see no reason to interfere with the sentences imposed.  The appellant’s sentences are neither excessive or wrong in principle.  In fact, the appellant should consider himself fortunate that the Magistrate did not enhance the sentence based on his immigration status.  She had all the reasons to enhance the sentence but decided against it.

Conclusion

20.In the circumstances, the appeal against his sentence is dismissed.

Miss Lee Hoi Ping, Peggy, Public Prosecutor of Department of Justice, for the respondent

The appellant appeared in person