HKSAR v. Mosquiana Antony

HCMA000716/2003

HCMA 716/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 716 OF 2003

(ON APPEAL FROM KCCC 8479 OF 2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 13 November 2003

Date of Judgment: 13 November 2003

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J U D G M E N T

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1.The Appellant was tried together with another defendant and both of them were charged with keeping a divan. On the day of the trial, they had both pleaded guilty.

2.The facts that they admitted to were that, on the day of the offence, police went to the subject premises. After observation, the police then knocked on the door, their request for entry was ignored and a few minutes later, the 1st Defendant, who was the Appellant in this case, opened the door and allowed the police to enter. Upon entry, police found the 2nd Defendant in the case and 6 others were inside the premises. Subsequently, the 1st Defendant admitted to have kept the divan and that his job was to open the door to customers whereas the 2nd Defendant in the case had confessed they sold dangerous drugs to other drug addicts. He also said that the drug had been flushed prior to the police entry, so both defendants were arrested.

3.The learned Magistrate having been told the circumstances of this case was also made aware of the previous record of the Appellant. The Appellant had some eleven previous convictions but his last conviction for drugs was in 2002 for simple possession. The learned Magistrate in sentencing the Appellant took into account that keeping a divan perpetuated and extended the menace of drug addiction and that is why the law takes this offence seriously and it is why the normal limit on the Court's sentencing power is increased, and why the maximum sentence in the Magistracy for this offence is the same as it is for trafficking in dangerous drugs. He rightly took into account that both Defendants before him were simply employees but that their presence were vital to the operation of this business. He considered that this was a well-organised operation and well-equipped and the fact that apart from tin-foil strips, some over 100 new syringes with needles were found. He also took into account the fact that these cases involving operation of drug dens are commonly before the Court these days. So after taking into account all the circumstances and the slightly different roles of the two Defendants before him, he decided that an appropriate sentence for the Appellant in this case was a starting point of 27 months which he reduced to 18 months because of the plea.

4.Mr Percy on behalf of the Appellant appeals against that sentence on the ground that it is manifestly excessive. He submits that there is no clear aggravating circumstance to make this offence any more serious than the offence in HKSAR v. Ho Sai Chak HCMA No. 780 of 1999, so he submits therefore that the sentence a starting point of 27 months is obviously excessive.

5.Ms Chan for the Respondent submits that although it is not as sophisticated as the previous case we have just heard today, it is still a sophisticated operation and the learned Magistrate was well within his right to find on the facts that this den was well-organised and well-equipped. There is no doubt also that drugs were not found because they had been flushed earlier on when the police entry was deliberately delayed by the Defendants.

6.In this case, the learned Magistrate had already taken into account that it is not to the most sophisticated type of operation that came before him, but it was still a serious operation. He was right to consider also that there is a prevalence of this type of case that coming before the Court and that people who get involved in this type of operation should expect a tough sentence from the Court.

7.So after considering all these circumstances, I would agree with the learned Magistrate that serious sentences are called for, I do not consider therefore that the sentence he gave the Appellant in this case was manifestly excessive. It is a heavy sentence, I agree, but it is not a sentence that is manifestly excessive that I would interfere with. So the appeal is dismissed.

Representation:

Ms Vivien Chan, GC of Department of Justice, for the Respondent

Mr Duncan Percy, assigned by Director of Legal Aid, for the Appellant