HKSAR v. Cheung Wai Wah

HCMA000010/1999

HCMA10/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 10 OF 1999

(On appeal from SPC 6860 of 1998)

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Coram : Deputy Judge Gill in Court

Date of hearing : 10 March 1999

Date of judgment : 10 March 1999

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J U D G M E N T

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On 10 November 1998 before D L Duggan Esquire, principal magistrate, the appellant pleaded guilty to the offence of possession of dangerous drugs, a small quantity of heroin. On 24 November the magistrate sentenced him to nine months' imprisonment.

2. The appellant appeals the sentence upon the grounds recorded that the magistrate was prejudiced against him and dangerous drugs, and that other defendants who appeared on that day received shorter sentences whilst in possession of a larger amount of dangerous drugs.

3. The prosecution's summary of facts, with which the appellant agreed, stated that he was the subject of a straight-forward stop and search and found to have the drugs in a single packet clutched in his fist.

4. The magistrate called for a DATC report which declared the appellant not suitable for detention there, given that he was regarded as a deep-rooted criminal with 19 previous convictions and had been to DATC twice before, resulting in a relapse on each occasion. In fixing a starting point of 12 months, the magistrate said he relied upon recent judgments on appeal dealing with offenders caught with a small quantity of heroin. He allowed for a reduction of three months for the plea, less than the usual one-third because the appellant had pleaded not guilty until the day of his trial.

5. The sentence he arrived at could not be faulted. The claim of prejudice is entirely without merit. The appellant's grievance that he was treated more harshly than other offenders on the day, even if true, fails to pay heed to the wide discretion that a sentencing court may exercise before arriving at a particular sentence for a particular offender guilty of a particular offence. Other matters that he has put before me are inaccurate and carry no weight.

6. The appeal has no merit whatsoever and is dismissed.

Representation:

Mr David CHAN, Senior Government Counsel, for HKSAR

CHEUNG Wai-wah, Appellant, in person