HKSAR v. Lau Tak Kam

HCMA000201/2002

HCMA201/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.201OF 2002

(ON APPEAL FROM NKCC 4419 OF 2001)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 23 May 2002

Date of Judgment: 23 May 2002

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J U D G M E N T

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1.This is an appeal against sentence only, the appellant having abandoned his appeal against conviction and it having been dismissed.

2.The appellant, who has a bad criminal record, was sentenced to 18 months' imprisonment concurrent for each of two offences of possessing heroin. The amounts involved in each case were about 0.2 gramme.

3.The appellant at the time of the offences was a serving prisoner at Lai Chi Kok. He was in the hospital segregation ward there when the drugs were found secreted in his clothing and on his person. He now complains the sentences imposed were too severe.

4.The taking of drugs into a prison and possession of them in a prison are serious matters which warrant deterrent sentences. That has been the position in our law in Hong Kong for a very long time : R v. Chu Ki [1965] HKLR 600. It was accepted by the court in Attorney General v. Au Kwok Chai, Application for Review No.22 of 1995 that :

"...the courts have always regarded the smuggling of dangerous drugs into prison as a serious offence. Indeed the magistrate himself appears to have taken that view. We agree. It was pointed out by Mr Cross, who appears today for the Attorney, that this was a distinct offence and was of a kind which particularly calls for a deterrent sentence. Deterrence sentences are imposed not to deter the offender but also to deter others who might be like minded. This is of particular importance when dealing with offences of this nature as they are calculated and committed with full knowledge of the seriousness of what is being done. ..."

5.The court, in that case, was dealing with a packet of drugs consisting of a mixture of 0.42 grammes containing 0.06 grammes of heroin, and was satisfied that a proper sentence after a plea of guilty was 12 months' imprisonment. Generally, the sentences imposed for the bringing of quantities of drugs into prison of the present sort have been in the vicinity of 12 months' imprisonment : see also HKSAR v. So Muk Chi, HCMA3/1999.

6.It is true in the present case that the two packets of heroin smuggled into prison by the appellant were cleverly hidden in his clothing and on his person. That always is the case in offences of this nature. The magistrate did regard it as an aggravating factor that the appellant had smuggled these drugs into a segregated part of the prison, being a hospital ward.

7.But I must say that I am not sure the fact that the drugs were possessed in any particular part of a prison can amount to an aggravating factor. In any event, in my judgment, it does not warrant an increase of 50% in sentence. In my view, given the quantity of narcotic involved, the total sentence of 18 months' imprisonment in the circumstances of this case was too high. Accordingly, the magistrate's sentences in respect of each charged offence are set aside and substituted with sentences of 12 months' imprisonment for each offence concurrent to each other.

8.The appellant further complains that the sentences in this case were not ordered to be served concurrently in any way to his existing sentence of eight months' imprisonment for a theft offence, of which he still had some two weeks to serve when sentenced for these offences if what remained of his remissions were taken into account.

9.His arguments in that regard were complicated somewhat when it transpired during the course of this hearing that he had not disclosed to this court in presenting his arguments on this appeal that he had, on 16 April 2002, also been sentenced to six months' imprisonment, to be served consecutively to his other terms of imprisonment, for an offence of escaping whilst in custody. He had apparently briefly escaped from custody whilst being transported to hospital for some treatment.

10.The appellant does not appeal against that sentence before me and I am concerned only with his appeal against sentence relating to the two offences of possessing dangerous drugs.

11.So far as the present appeal is concerned, the magistrate specifically ordered that the appellant's sentences run from the date of sentencing. I assume he took that particular course rather than simply order the sentences to be served consecutively to the existing sentence of imprisonment the appellant was serving, because there were some uncertainties as to the appellant's date of release in respect of that previous sentence as he had lost a considerable period of remission as a result of his gambling while in prison.

12.As it transpired, the appellant had about 14 days of his existing sentence to run when he was sentenced for the present offences. That meant that the present sentence was to be served effectively consecutively, or at least in the main consecutively, to the existing sentence of eight months' imprisonment the appellant was serving for the theft offence, with about 14 days overlapping between the two sentences.

13.It is a proper principle of sentencing that there is generally good reason to order that sentences of imprisonment for offences committed by prisoners while they are serving sentences of imprisonment for other offences should be served consecutively : R v. Idris Ali [1998] 2 Cr. App. R.123.

14.It is important that prison discipline be maintained. It would be wrong for prisoners to, in any way, assume that because they are already serving a term of imprisonment that subsequent offences committed by them in prison have a better chance of being ordered to be served concurrently with their existing sentences.

15.It was not wrong in principle for the magistrate to order the sentences in this case to run effectively consecutively to the existing sentence being served by the appellant. In short, there is no merit to this aspect of the appeal.

Representation:

Mr Liu Yuen Ming, SGC, of the Department of Justice, for the Respondent

Appellant in person