HKSAR v. Chan Wai Hung
Read the full judgment text of HCMA 631/2004 on BabelCite. This High Court CFI judgment was delivered on 3 September 2004.
1. The appellant was convicted on his own plea of a single charge of possession of a dangerous drug, namely midazolam, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134. The learned magistrate sentenced him to nine months’ imprisonment, ordering that six months of the sentence of imprisonment be served consecutively to an existing sentence of imprisonment.
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HCMA631/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 631 OF 2004 (ON APPEAL FROM STCC 650 OF 2004) ---------------------- BETWEEN
-------------------- Before : Hon Lunn J in Court Date of Hearing : 3 September 2004 Date of Judgment : 3 September 2004 ------------------------ J U D G M E N T ------------------------ Background 1.The appellant was convicted on his own plea of a single charge of possession of a dangerous drug, namely midazolam, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134. The learned magistrate sentenced him to nine months’ imprisonment, ordering that six months of the sentence of imprisonment be served consecutively to an existing sentence of imprisonment. Facts 2.The appellant accepted as the factual basis for his plea of guilty that he had been in possession of a syringe in which there were traces of midazolam at the time he was searched on 7 June 2004 in the cells of Tsuen Wan Magistracy. At that time he was in custody in respect of another matter and had been taken by police officers to The Lady Trench Clinic earlier that morning for methadone treatment. After some initial prevarication before the magistrate, Mr Jenkins, the appellant accepted that he had known of the presence of the syringe in his shoe at the time at which it was found. Reasons for sentence 3.Of the seriousness of the offence, the learned magistrate indicated at the time of sentence that this was “a deliberate act, by you to take this syringe into the court and, then, into custody.” The magistrate went on to state that he took into account “that the quantity of drug involved here is, really, quite small, and I also note the nature of the drug.” It is to be noted that the government chemist certificate had described the midazolam as present as a “trace” only. 4.In his written Reasons for Sentence dated 23 June 2004, the magistrate indicated that he had taken a starting point of 12 months’ imprisonment. He indicated that he had relied upon the judgment of Deputy Judge McMahon (as he then was) in HKSAR v. Lau Tak Kam [2002] 2 HKLRD 404. 5.The magistrate went on to indicate that, notwithstanding the plea of guilty tendered on the first day of trial, he had not discounted the appellant’s sentence by one-third, he stated :
6.Mindful of the fact that the appellant was serving a sentence of 12 months’ imprisonment imposed for two separate offences of possessing obscene articles for publication, the magistrate indicated that having regard to the totality principle, he determined to order that only six months of the sentence of nine months’ imprisonment he imposed would be served consecutively to that earlier sentence. Grounds of appeal against sentence 7.The appellant’s short ground of appeal against sentence is the sentence imposed upon him “is too severe”. 8.Whilst the magistrate was dealing with the appellant in respect of the offence of possession of a dangerous drug, it is clear that the far more appropriate charge would have been possession of an instrument fit to inject a dangerous drug. That is made perfectly apparent by the fact that the amount of midazolam possessed by the appellant in that syringe is described as “a trace”, not measurable. 9.In dealing with the offence of which the appellant was convicted, the magistrate had regard to the judgment of Deputy Judge McMahon in Lau Tak Kam, cited earlier. In that case the appellant had been convicted on two charges of the possession of heroin, in each case amounting to about 0.2 grammes. Whilst a remand prisoner in Lai Chi Kok Reception Centre, he was found with the dangerous drugs in the hospital ward at the prison. The appellant was convicted after trial and sentenced to 18 months’ imprisonment in respect of each charge, ordered to be served concurrently. 10.Deputy Judge McMahon reviewed the authorities and stated :
Nevertheless, the judge set aside the sentences imposed by the magistrate and substituted for those sentences sentences of 12 months’ imprisonment for each offence, ordered to be served concurrently. 11.In this appeal the magistrate had taken the same period of 12 months’ imprisonment as the appropriate starting point. However, as he acknowledged the dangerous drugs in question are midazolam, not heroin, and they were present in only “trace” amount not 0.4 grammes. In reality, the culpabilityof the appellant’s conduct was the smuggling of a syringe into a place of custody, the syringe contained an unmeasurable trace amount of what had been in the syringe before. 12.In R. v. Law Sing [1996] 4 HKC 477, Stock J (as he then was) reviewed the authorities dealing with the appropriate sentence for offences for the possession of instruments fit and intended to be used for the consumption of drugs. In his judgment, he stated :
13.In that case Stock J was dealing with an appellant who had 68 previous convictions, no less than 40 of which were drug related. He declined to interfere with the sentence of six months’ imprisonment imposed by the magistrate following the plea of guilty by the appellant. Conclusion (i) Starting point 14.In my judgment, in all the circumstances of this case, in particular having regard to the “trace” amount of the dangerous drug and its nature, midazolam, the magistrate erred in identifying 12 months’ imprisonment as an appropriate sentence to take as a starting point. In my judgment the appropriate starting point for the circumstances of the commission of this offence is six months’ imprisonment. (ii) Discount 15.As indicated earlier, the learned magistrate declined to give the appellant the full one-third discount upon his plea of guilty. He indicated that he declined to do so because “the plea was only tendered on the day of the trial and not earlier.” On behalf of the respondent, Miss Tsang has referred this court to the decision of R. v. Wong Ngai Hung, Criminal Appeal No.596 of 1995 (unreported) and HKSAR v. Lian Chun Wai, Criminal Appeal No.182 of 1997 (unreported). In the course of the appeal, she was asked by the court if she was possessed of the current version of Cross and Cheung on Sentencing. It emerged that she was not possessed of the current edition. It may be that is some explanation for why it is that she has not referred this court in her written submission to the current practice, as indicated by the Court of Appeal, in sentencing in respect of pleas of guilty. The sooner those who appear on behalf of the respondents in appeals against sentence, as in the appeal before me today, are possessed of the current edition of that book the better. 16.In HKSAR v. Li Tak Yin [2003] 1 HKLRD 519, the Court of Appeal addressed the issue of the appropriate discount for a plea of guilty in respect of the timing of the plea of guilty. In the judgment of the court, Stock JA in addressing this matter said :
17.Later, Stock JA referred to illustrations of such circumstances given by the Court of Appeal in Lo Chi Yip including, for example, where a frightened or reluctant witness had been forced to come to court prior to the plea being tendered. 18.Whilst emphasizing that the one-third discount upon a plea of guilty was not a rigid rule, Stock JA went on to note that if that one-third discount was not given to a defendant upon his plea of guilty :
19.The learned magistrate has not identified such a reason or circumstance as justifying a departure from giving the one-third discount upon plea of guilty. At the invitation of the court, Miss Tsang was invited, if she could, to identify such reason or circumstance. She could not do so. In my judgment there is no such reason or circumstance in this case and the appellant is entitled to a one-third discount from the appropriate starting point. 20.Having imposed a sentence of nine months’ imprisonment upon the appellant, the magistrate ordered that six months of the sentence be served consecutively to the existing term of 12 months’ imprisonment which the appellant was then serving. In doing so, the magistrate stated that he was having regard to the totality principle. In Lau Tak Kam, Deputy Judge McMahon had noted of the appropriate approach to sentence in a conviction in these circumstances :
Order 21.For the reasons set out above, in my judgment, the sentence of nine months’ imprisonment imposed upon the appellant is manifestly excessive. In those circumstances I quash the sentence of imprisonment imposed by the magistrate together with his order that it be served in part only consecutively with the existing sentence. In its place, I impose a sentence of four months’ imprisonment, giving the appellant the full one-third discount from the starting point of six months’ imprisonment. I order that that sentence be served consecutively to the sentence which the appellant was serving at the time of his conviction.
Miss Olivia Tsang, GC, of the Department of Justice, for the Respondent Appellant in person |
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