HKSAR v. Tsang Pang Fei

HCMA000087/2000

HCMA87/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.87 OF 2000

(ON APPEAL FROM ESCC 3870 OF 1999)

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Coram: Deputy Judge Tong in Court

Date of Hearing: 25 February 2000

Date of Judgment: 25 February 2000

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J U D G M E N T

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1. The appellant was charged with one count of possession of dangerous drug, contrary to sections (8)(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134, Laws of Hong Kong.

2. The nature of the drug involved was midazolam maleate, not heroin. The amount involved was eight tables with 0.14 grammes and a packet with 24 milligrammes of the drug.

3. The appellant pleaded guilty to the offence and received a sentence of six months. He sought to appeal against the sentence.

4. The admitted facts revealed a simple case. When the police officer was patrolling near the spectator stand in the Southern Playground, he noticed the appellant and the exhibits were placed on the bench. Upon further enquiry, the appellant admitted ownership of the drug in question. He was therefore charged with the offence.

5. The appellant had a total of six previous convictions with three relating to drugs. The appellant was found to be a drug dependent, however, the Drug Addiction Treatment Centre refused to admit him as he had been to the Centre two times already.

6. In sentencing the appellant, the learned magistrate considered that neither a fine nor a suspended sentence was appropriate. I agree. The appellant was on public assistance, a fine would be meaningless; and in view of his background, a suspended sentence equally would serve no purpose. The learned magistrate adopted a starting point of nine months and reduced it to six to reflect the guilty plea.

7. Counsel for the appellant submitted that this starting point was too high. He cited the following two cases to support his argument.

1. In HKSAR v. Luk Yun Shing, CACC357/1998, it was held that one month was the appropriate sentence for the possession of 160 tablets of midazolam maleate tablets.

2. In HKSAR v. Wong Tso Hsin, HCMA967/1998, it was held that for trafficking in small quantity of midazolam maleate, the sentence should be at the discretion of the court, but not more than six months. For simple possession, the same sentencing scale applied on a lesser basis. The learned judge considered that four months, instead of six, would be the appropriate starting point for the 15 milligrammes of the drug. The four months were further reduced to 12 weeks to reflect the plea.

8. In this particular case, although the appellant was legally represented, the relevant cases were, unfortunately, not drawn to the attention of the learned magistrate during mitigation. In the very busy Court 1 of the Eastern Magistracy, it would be helpful if legal representatives could assist the court by referring to the relevant authorities in mitigation in the less usual type of cases.

9. Of course, each case has to be dealt with on its own particular facts. Considering the amount of drug involved and the appellant's background, it would be appropriate to adopt a starting point of four months, and it should be reduced to 80 days to reflect the guilty plea. In the circumstances, the original sentence would be set aside to be substituted with a term of imprisonment of 80 days. The appeal would be allowed to that extent.

Representation:

Mr Paul Ho, SGC of DPP, for HKSAR

Mr Newman H.W. Wong, assigned by DLA, for the Appellant