HKSAR v. Tsang Cheung-kwong

HCMA81/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 81 OF 2005

(ON APPEAL FROM ESCC 5269/2004)

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BETWEEN

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Before:  Hon. Lugar-Mawson J in Court

Date of Hearing:  22 March 2005

Date of Judgment:  22 March 2005

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J U D G M E N T

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Background

1.The Appellant, Tsang Cheung-kwong, appeared before Mr Ian Candy, Principal Magistrate at Eastern Court, on 1 December 2004 and pleaded guilty to an offence of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance and to a charge of possession of a dangerous drug, contrary to sections 8(1)(a) and 8(2) of the Dangerous Drugs Ordinance. 

2.He was convicted and was sentenced to 9 months’ imprisonment on the trafficking charge and 3 months’ imprisonment, one month of which was to run consecutively to his sentence for the trafficking offence, on the possession charge, a total of 10 months’ imprisonment.

3.The Appellant had a co-defendant, a man called Tsui Hung-lo, who was charged with a single charge of possession of a dangerous drug, arising out of his purchase of dangerous drugs from the Appellant.  Tsui pleaded guilty to the possession charge and was sentenced by the Magistrate to 4 months’ imprisonment.

Subject Matter of Charges (1) and (3) against the Appellant

4.The dangerous drugs, which were the subject matter of the charges the Appellant faced were, in respect of the trafficking charge, 5 tablets and 2 fragments of tablets containing 0.08 grammes of midazolam maleate and in respect of the possession charge, 30 tablets containing 0.42 grammes of midazolam. 

Appeal Against Sentence

5.The Appellant appeals against sentence in respect of the sentence passed in respect of the trafficking charge only.  It is submitted on his behalf by his counsel, Mr Osmond Lam, that the starting point of 12 months’ imprisonment taken by the Magistrate was too high and that the overall sentence was manifestly excessive. 

Brief Facts of the Case

6.The facts are simple.  On 18 October 2004, the 2nd Defendant, Tsui, was observed passing money to the Appellant, who then went up to his flat in the Yue Kwong Estate in Aberdeen.  There he was seen to drop from the 10th floor a packet of dangerous drugs.  This was seized by the police and was later found to contain 5 tablets and 2 tablet fragments of midazolam.  The Appellant’s flat was then searched and the 30 tablets of midazolam were found hidden in a sofa in the living room.

7.The Appellant has a criminal record.  He has 19 previous offences of which 5 are for possession of dangerous drugs.

Reasons for Sentence

8.In his very short reasons for sentence, the Magistrate accepts that the starting point of 12 months’ imprisonment he adopted for the trafficking charge should have been 9 months’ imprisonment and that after taking into account the Appellant’s guilty plea, the correct sentence should have been 6 months’ imprisonment.  The Magistrate also accepts that had he passed a 6 months’ sentence on the trafficking charge, he should have first obtained a Drug Addiction Treatment Centre suitability report on the Appellant, as provided for in section 54A(1A)(a) of the Dangerous Drugs Ordinance.

9.Miss Linda Shine, for the Respondent, after referring to various Magistracy Appeal cases dealing with the level of sentence for those who traffic in small quantities of midazolam, accepts that the starting point sentence of 12 months’ imprisonment was too high and that, allowing for the Appellant’s guilty plea, his sentence for the trafficking charge should have been in the region of 6 months; I agree.

10.This of course means that the provisions of section 54(A) of the Dangerous Drugs Ordinance come into play and that a Drug Addiction Treatment Centre suitability report should be called for.  Practically that would be a futile exercise, as after just over 3 months’ imprisonment the Appellant will, or should, be found to be no longer drug-dependent and therefore no longer suitable for DATC treatment. 

11.Given that the Appellant has already served what effectively would have been the major part of his sentence, after remission for good conduct, had he been sentenced to 6 months’ imprisonment for the trafficking charge, I believe that the justice of the situation is best served by my quashing the 9 months’ sentence for the trafficking charge, as well as the Magistrate’s order that the Appellant serve one month of the 3 months’ sentence for the possession charge consecutively to that sentence and, in its place, pass on the Appellant a sentence for the trafficking charge of such period as will permit his immediate release from custody, and, at the same time, order that he serve, or be deemed to have served, the whole of his sentence for the possession charge concurrently with the sentence for the trafficking charge.  This order will permit the Appellant’s release from custody today.

Representations:

Ms Lynda Shine, SGC, for HKSAR

Mr Osmond Lam, instructed by the Legal Aid Department, for the Appellant