HKSAR v. Cheng Ton Hau

HCMA000666/2003

HCMA666/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.666 OF 2003

(On Appeal From KCCC 7153 Of 2003)

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Coram: Hon Gall J in Court

Date of Hearing: 17 October 2003

Date of Judgment: 17 October 2003

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J U D G M E N T

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1.The appellant was convicted on 17 June 2003 of assisting in the management of a divan where dangerous drugs were sold. He was sentenced on the same day to 16 months' imprisonment.

2.The facts were that a team of police officers executed a search warrant at the premises where the divan was being conducted. An undercover police officer had already purchased two packets of heroin from another person in the premises. The appellant was found to be the doorkeeper whose job it was to open the door for drug addicts to enter the divan where they would then purchase the drugs from other persons. The appellant suffers from tuberculosis and is an addict. He was paid the sum of $500 per day and he said that he had operated in that position for one day and had not been there previously.

3.The learned magistrate took as a starting point of two years' imprisonment and, finding no other significant mitigating factors, reduced the sentence to one of 16 months' imprisonment to reflect the plea of guilty.

4.The act of keeping a divan at which dangerous drugs were sold performed by the appellant was at the lower end of acts required to make out the offence. Mr Madigan, for the respondent, very fairly concedes that whilst there is no tariff in respect of this sentence it is more often than not that a sentence after a plea of guilty for a person who does not sell drugs on the premises would be one of 12 months' imprisonment.

5.Whilst he argues that the sentence in this case is not manifestly excessive and should remain undisturbed, I am of the view that the starting point taken by the magistrate, bearing in mind the particular facts of this case and not intending in any way to set a standard for the appropriate sentence in a class such as this, should have been one of 18 months' imprisonment, reduced to 12 months' imprisonment by virtue of the plea. The magistrate is correct in saying there is no other mitigation than that plea.

6.The appeal against sentence is allowed, and the sentence is set aside and replaced with one of 12 months' imprisonment.

Representation:

Mr P.K. Madigan, SGC of the Department of Justice, for HKSAR

Mr Michael K.B. Cheng, instructed by Messrs To, Lam & Co.,assigned by the Director of Legal Aid, for the Appellant