Li Fat v. The Queen

Case No.CACC 236/1971

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000236/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 236 OF 1971

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BETWEEN:
	LI FAT	Appellant
	and
	THE QUEEN	Respondent

Coram: Rigby, C.J.

Date of Judgment: 11th May, 1971.

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JUDGMENT

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1. On the 10th March, 1971, the appellant was serving a four year sentence of imprisonment at Her Majesty's Prison at Stanley. On that day a prison warder found the appellant in his cell in possession of a syringe; the syringe was taken from the appellant; it was examined by the Government Chemist and was found to contain traces of salts of esters of morphine. The appellant was charged with two charges: possession of a dangerous drug and possession of equipment, to wit, a syringe, fit and intended for injection of a dangerous drug. He pleaded guilty to both those charges.

2. The magistrate sentenced him to six months' imprisonment on each charge, such sentences to run consecutively. In his statement of facts drafted for the purposes of this appeal, the magistrate very frankly sets out that his intention was that the sentence on each charge should run concurrently with one another, but consecutive to the sentence which he is at present serving. He points out that under normal circumstances he would have imposed a more severe sentence. Indeed, the normal practice of this magistrate is to imposed sentences of 12 months' imprisonment for possession of dangerous drugs by a prisoner serving a term of imprisonment. However, in this case, he makes it clear that the appellant was practically at the end of a sentence of four years' imprisonment and that in those circumstances it was his intention to limit the further period which he would have to serve upon conviction for this offence to a further sentence of six months' imprisonment.

3. I see no reason to disagree with the view which the magistrate has expressed in his Statement of Facts and the sentence will be ordered to run concurrently and not consecutively.

4. There is one further observation that I would wish to make in connection with this case. It would seem clear that the dangerous drugs found were the traces of drugs which were found in the syringe itself. In those circumstances, it seems to me singularly undesirable that there should have been two separate and distinct charges here; a charge not only of possession of the syringe as being an instrument fit and intended for injection of a dangerous drug, but the further charge of possession of a dangerous drug. It is, I think, singularly apposite to quote in this connection the words of Lord Justice Edmund Davies in the case of R. v. Harris⁽¹⁾ in which he said:-

It does not seem to this court right or desirable that one and the same incident should be made the subject-matter of distinct charges; so that hereafter it may appear to those not familiar with the circumstances that two entirely separate offences were committed. Were this permitted generally, a single offence could frequently give rise to a multiplicity of charges and great unfairness could ensue."

5. In this case it is abundantly clear, as I have said, that the possession of the dangerous drug was the possession of the traces of the dangerous drug which were found in the syringe which was, of course, in itself the subject-matter of a separate charge. In my view, there is really no justification whatsoever for including the further charge of possession of a dangerous drug.

Representation:

(1) (1969) 2 A.E.R. p.599.