HKSAR v. Phung Hai

HCMA000025/2000

HCMA25/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.25 OF 2000

(ON APPEAL FROM SKC 3271 OF 1999)

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Coram: Deputy Judge Tong in Court

Date of hearing: 17 February 2000

Date of judgment: 17 February 2000

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J U D G M E N T

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1. In this particular case, the appellant was charged with one count of possession of dangerous drug. The drug involved was cannabis and the amount was 1.18 grammes. The appellant pleaded guilty and the sentence imposed was six months' imprisonment. The appellant sought to appeal against this sentence.

2. In the Reasons of Sentence, the learned magistrate stated that he considered the appellant to be a persistent offender and a fine would be manifestly inadequate. In this regard, the record showed that the appellant was twice convicted of drug related offences in 1997 and 1999. Finally, the learned magistrate took a starting point of nine months and reduced it to six in view of the plea.

3. Counsel for the appellant argued that the sentence was manifestly excessive. The tariff for even trafficking in cannabis resin would only be four to eight months for over 500 grammes (Attorney General v. Chan Chi Man [1987] HKLR 221). It was submitted that there should be a difference between the sentence in possession and trafficking (R. v. Leung Moon Wah MA643/1996). However, the learned magistrate had made no reference to these authorities in his Reasons of Sentence.

4. In light of the relevant authorities, the respondent did not seek to support the sentence. In the circumstances, I had allowed the appeal by reducing it to two months. This appeal would be allowed to that extent.

Representation:

Mr G. Di Fazie, SGC of DPP, for HKSAR

Mr Andy Hung, assigned by DLA, for the Appellant