HKSAR v. Li Kuen Wai

HCMA000526/1997

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 526 OF 1997

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Coram: Deputy Judge Gill, in Court

Date of hearing: 10 September 1997

Date of judgment: 10 September 1997

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J U D G M E N T

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1. The appellant appeals a sentence of 15 months' imprisonment imposed by Mr J Acton-Bond, Magistrate, when he pleaded guilty before him to the offence of being in possession of a quantity of heroin whose narcotic content was 6.55 grammes in weight.

2. The drugs were found by police officers executing a search warrant at the appellant's home. He admitted, under caution, possession for his own consumption, then pleaded not guilty in the plea court. He changed his plea when before the court for trial.

3. He has five previous convictions all but one being for the same offence. On the last occasion he was sentenced to probation, but was in breach of that, following which he was re-sentenced to 12 months' imprisonment. That was reduced to allow for his immediate release, he having served the equivalent of about six months.

4. In addition he has been to DATC on three separate occasions.

5. A DATC report called for revealed the appellant to be still drug dependent, but unsuitable by virtue of the long history of drug addiction and previous unsuccessful attendances for admission for a fourth attempt at treatment.

6. The magistrate, in his reasons for sentence, after considering two recent cases for the same offence, then said: 'On the basis of those cases for this quantity of drugs, 18 months would have been an appropriate starting point for sentence, having taken into account the remorse shown by the plea of guilty." He underlined the words "having taken into account". On an ordinary reading this suggests he adopted 18 months as a starting point after plea. But then, having mentioned mitigation put forward, he went on to say: "I did not feel that his was a case where such matters could properly allow me to depart from the appropriate sentence." By that, I assume he meant he could not make a discount on that ground. It is hard thus to establish why it was that there was, in fact, a three month reduction. Was it after all for the plea, albeit a tardy one, or for the mitigation, or for some other reason? In any event it is probably not too material, because my role is to decide whether the sentence imposed was, at the end of the day, wrong in principle or manifestly excessive. The magistrate did, by referring to two recent cases, have in his mind a recent enhancement of the maximum sentence that can be imposed on indictment for this offence. These days, offenders who might in the old days have been caught by the presumption associated with the offence of possession for unlawful trafficking are being sentenced for the offence of possession simpliciter, where quite large amounts of drugs are the subject of the charge.

7. Whilst it must be regarded as wrong to deal with such offenders as traffickers, sentencing courts have recognised that the greater the amount of drugs the more the latent risk that they may well have been intended for the market place, if only to fuel the offender's own habit. Thus there has been an increase in the terms imposed for such offenders, although there is by no means a tariff.

8. In this case it is quite apparent that the appellant is, for all his relative youth and relatively ordered private life, a hard-core addict, but with a reasonable work history and lifestyle, suggesting that he can probably support his own habit without resorting to crime, and in particular, to trafficking. The amount of drugs in his possession was of significant quantity, but given his history and circumstances, was not of such large amount that there was any real prospect of this being found back in the market place. I do not believe this was a case where the latent risk factor should have been, if it was, an issue.

9. Possession of drugs is, without question, a serious offence. Use of drugs fuels the ever-present scourge of drug manufacturing, production and distribution, which is ruinous to the society which suffers from it. Drug addicts, such as the appellant, are, by and large, given every opportunity to rid themselves of their addiction by treatment if caught in possession. For the appellant, this has been attempted no fewer than three times at DATC, to no avail. Ongoing offenders must expect prison as an alternative. The appellant was entitled to expect no less.

10. Whatever was the starting point before plea that the learned magistrate contemplated, I believe 12 months would have been appropriate in this case, with three months' reduction for the plea which was not, after all, at first instance. I believe there is nothing put forward in mitigation which warrants a reduction on that ground.

11. In all the circumstances I am of the view that the sentence the learned magistrate imposed was, with due respect to him, manifestly excessive.

12. The appeal is allowed to the extent that the sentence is reduced to one of nine months' imprisonment.

Representation:

Miss Polly Wan Shuk FONG, Senior Government Counsel, for HKSAR

Mr E.C. Mumford, Senior Counsel, (C.K. TSE & KAN), for the Appellant