HKSAR v. Subba Siwani

HCMA001205/2003

HCMA1205 & 1225/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1205 & 1225 OF 2003

(ON APPEAL FROM TMCC 3445 & 3447 OF 2003)

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Coram : Hon Jackson J in Court

Date of Hearing : 11 February 2004

Date of Judgment : 11 February 2004

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J U D G M E N T

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1.On 12 November 2003 the appellant pleaded guilty at Tuen Mun Magistracy to an offence (committed on 15 September) of possessing four straws containing 1.82 grammes of mixture containing 0.22 grammes of heroin. She was sentenced to a term of eight months' imprisonment.

2.On 26 November the appellant pleaded guilty (before the same magistrate) to an offence (committed on 27 October) of possessing one straw containing 0.36 grammes of a mixture containing heroin. She was sentenced to a term of four months' imprisonment for that offence which term was ordered to be served consecutive to the term of eight months.

3.The appellant appeals against her total sentence of 12 months' imprisonment saying by implication that it is too severe.

4.In his Reasons for Sentence (given in respect of the second offence) the magistrate says, inter alia, this :

" The Appellant was aged 30 and was married to Hong Kong citizen. The marriage broke up in 2001 and she was concerned about the younger child who was only 11 months old. The Appellant was not a drug addict and only used dangerous drugs to ease the anxiety brought about by her depression.

With the consent of both the prosecution and the defence I referred to the Drug Addiction Treatment Centre report which I obtained for the Appellant in case number TMCC 3447/2003 for the purpose of sentencing in the present case.

According to the report the Appellant is a Nepalese who married a Hong Kong resident in 1992. She came to Hong Kong in 1995 to join her husband. In 2001 the marriage broke up because the husband was involved in an extra-martial affair. The Appellant became upset and due to depression she began to abuse heroin and got addicted. The Appellant began to co-habit with her present boyfriend in 2001 and gave birth to the younger daughter in 2002.

After careful examination the medical officer was of the view that the Appellant was not a drug addict and was therefore not suitable for admission to the Drug Addiction Treatment Centre.

Social Welfare Report

In view of the tender age of the Appellant's younger daughter a report was called for regarding the welfare of the child. According to the report she was being taken care of by the father of the cohabitee of the Appellant who planned to take her to India until the Appellant was able to resume the role of a mother. No social welfare assistance was required during the imprisonment of the Appellant.

Sentence

I referred to a number of authorities before sentencing the Appellant. These included R v So Ma Kwai [1993] 1 HKCLR 92 in which the range of sentence for an offence of possession of dangerous drugs was considered to be 6 to 9 months imprisonment after a guilty plea and R v Lam Wai Ping, MA239/1997 in which it was said that for a minimal quantity of heroin a sentence of 8 to 12 months imprisonment was appropriate for a possessor who was not suitable for admission to Drug Addiction Treatment Centre.

In the more recent cases of HKSAR v Tang Sze Woo, MA41/2003 and HKSAR v Cheung Hoi Lan, MA93/2003 the sentences of 8 months and 6 months imprisonment for the respective possession of 0.15 gramme and 0.09 gramme of heroin were held to be appropriate.

Although the Appellant was, technically speaking, of a clear record when she committed the present offence there existed an aggravating factor because the offence was committed when the Appellant was on police bail regarding case number TMCC3447/2003.

As pointed out above the Appellant was not suitable for admission to the Drug Addiction Treatment Centre. Having considered the circumstances of the case, including the aggravating factor as well as the previous good character and family circumstances of the Appellant, the Court is of the view that the only alternative was a term of imprisonment. After reviewing the authorities and bearing in mind the small quantity of dangerous drugs involved I adopted a starting point of 6 months imprisonment and giving credit for the Appellant's plea of guilty I sentenced her to 4 months imprisonment.

Although the offences in the present case and case number TMCC3447/2003 were of a similar nature they were 2 distinct cases and were committed at different times with an interval of 11/2 months. Having considered the whole circumstances and the totality principle I am of the view that the sentences of the 2 cases should run consecutively and I so ordered."

5.Save for one matter drawn to my attention by the appellant today, I respectfully agree with the magistrate.

6.That one matter is that the appellant is pregnant and is due to give birth at the beginning of June. It is her intention to return to Nepal with that child. Her elder child is in Nepal presently being cared for by her (the appellant's) mother. The appellant is due to be released from custody on 26 June.

7.It is in those circumstances that I allow this appeal to the limited extent that I order that the sentences imposed by the magistrate be served concurrently and not consecutively.

Representation:

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

Appellant in person