R. v. Chung Shun-keung

CACC000405/1991

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Power, J.A.

Date of Hearing: 11 February 1992

Date of Judgment: 11 February 1992

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J U D G M E N T

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Hon. Yang, C.J.:

1. The applicant was charged with possession of over 24 grammes of a mixture containing more than 21 grammes of heroin for the purpose of unlawful trafficking. He admitted to possession of the drug on his person and claimed that he had the drug in his possession for his own use. The judge found that he had successfully rebutted the presumption of trafficking and convicted him of simple possession.

2. The applicant was at the time 18 years of age and he had previous convictions for robbery, blackmail and disorderly conduct. In imposing a sentence of three years the judge took the view that although the applicant was convicted of simple possession, he did not accept that the possession was for the applicant's own use. In his Reasons for Sentence the judge observed that if the facts which emerged during mitigation had been available at the trial, the presumption would most certainly not have been rebutted and the defendant would have been convicted of possession for the purpose of unlawful trafficking.

3. Before passing sentence, the judge called for a report from the Commissioner of Correctional Services which stated that upon medical examination the applicant was found not to be a drug addict and therefore not suitable for admission to a drug addiction centre. Normally the court would expect a report under s. 54A of the Dangerous Drugs Ordinance to be provided by the Drug Addiction Treatment Centre as to the suitability for admission. But in this case it was a report made by the Correctional Services Department and headed "Detention Training Centre Suitability Report" which is not usually the kind of report one might expect in a situation such as this. However, we are prepared to accept that s. 54A has, for the purpose of this case, been complied with.

4. The Reasons for Verdict concentrated themselves on the plea in mitigation that the applicant was at the time of sentence not a drug dependent though he had been a user at the time of the offence.

5. The defence produced a medical report from a doctor which said that the doctor was informed by the applicant that he had not touched any drugs since his arrest and he had freed himself of the drug by attending a methadone clinic.

6. However, the judge noted that at the trial a methadone treatment card was produced which to the judge suggested that the applicant had registered at the North Kowloon Centre in March 1991 and therefore was a drug user.

7. The learned judge reasoned that if the applicant did not take the drug from the time of his arrest in December 1990, then it would follow that in March 1991 it would have been entirely unnecessary for the applicant to attend a methadone centre. In the light of this discrepancy, the judge took the view that it was impossible to reconcile the production of this card with the doctor's account, and that the applicant had registered himself at the methadone clinic solely for the purpose of laying the foundation for a- rebuttal of the presumption. He therefore did not accept that the possession of the drug was for his own use.

8. Noting that the usual sentence for simple possession was 9 to 18 months, the judge took the view that this was a simple possession of the most serious type and not simple possession for his own use. He therefore imposed a sentence of three years - the maximum.

9. We are of the view that the judge was not justified in coming to the conclusion he did because there was no evidence to show in what way the simple possession came into the category of the most serious type. The judge further took the point that the defendant had a bad record. Whilst it cannot be said that the criminal record of the applicant was insignificant, it is perhaps going a little too far to say that the applicant had a bad criminal record. In the light of the applicant's admission of simple possession and his youth, and there being no evidence to show any purpose other than simple possession of the drug in question, we think the appropriate sentence in the present case should be one of one year.

10. We therefore allow the application, treat the application as the hearing of the appeal, allow the appeal and reduce the sentence of three years to one of one year.

Representation:

Mr. R. Buchanan (Crawford & Co.) for applicant

Mr. I.C. McWalters for crown/respondent