HKSAR v. Wong Wing Cheung

HCMA 573/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 573 OF 2003

(ON APPEAL FROM KCCC 8056 OF 2003)

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BETWEEN

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J U D G M E N T

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Introduction

1.The Appellant was convicted upon his own plea of one count of “Possession of Dangerous Drugs”, contrary to sections 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap. 134.

2.The learned Magistrate sentenced the Appellant to a term of 4 months’ imprisonment.  The Appellant appeals against sentence.

Facts

3.The facts of this case were straightforward.  On 9 April 2003, the Appellant was stopped and searched by a police officer. Inside the right front pocket of the Appellant’s coat, the police officer found a plastic sheet wrapping 2 tablets.  The tablets were later confirmed by Government Chemist to contain 26 milligrammes of midazolam.

Grounds of Appeal

4.The Appellant could not really advance any grounds of appeal save to say that his father had died over 30 years ago, his mother is old and not being able to move easily, needing his help.  He claimed that he got rid of the dangerous drugs addiction (heroin)  for over a year. Since he could not sleep, he needed medication and that is why he had the tablets.  He admitted that he was abusing substance and that he should be sentenced to jail in this case.  However, since only two tablets were involved and they were not heroin, the Appellant said that the sentence was a bit too severe.  He pleaded guilty in the first instance, saving taxpayers’ money and time.  He asked for a lighter sentence.

5.During the hearing I have explained to the Appellant that in order to succeed on an appeal against sentence, he had to show the sentence was manifestly excessive.  The sentence being a bit too severe is not a ground of appeal.

Reasons for Sentence

6.When the learned Magistrate sentenced this Appellant, he had called for and considered a DATC report.  The Appellant had been to a DATC a few times and he was considered not suitable for further detention.  The learned Magistrate, in his Reasons for Sentence, indicated that he bore in mind the drugs involved were midazolam and not heroin which meant a lower starting point should be adopted.  He also took into account the Appellant’s plea of guilty which entitled the Appellant to a deduction in sentence.

7.Having regard to all the circumstances, the learned Magistrate considered that a starting point of 6 months was proper. Giving the Appellant the usual one-third deduction, he therefore sentenced the Appellant to 4 months’ imprisonment.

Ruling

8.As the Appellant frankly admitted that he could not advance any grounds to say that the sentence of 4 months was manifestly excessive and I certainly do not see any ground to say so, the appeal is dismissed.

Ms Lo Shuk Ling, GC for Director of Public Prosecutions, for the Respondent

Appellant in person