HKSAR v. Tsui Long Yin

HCMA780/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.780 OF 2005

(On Appeal From KTCC 2252 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 19 October 2005

Date of Judgment : 19 October 2005

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J U D G M E N T

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1.The appellant was convicted on her own plea of one charge of ‘possession of apparatus fit and intended for the injection of dangerous drug’, contrary to sections 36(1) and (2) of the Dangerous Drugs Ordinance (Cap.134).  She was sentenced to 6 months’ imprisonment, to run consecutively to a 2 months’ suspended sentence activated by the magistrate.  She appeals against that sentence.

2.The agreed facts were as follows :

“Deft is a patient of Caritas Medical Center who is wheel chair bound.  At about 0315 hours on 2005-02-19, PW1 was conducting a routine check inside Room 732, Block A, 7/F, Wai Shun Block, Caritas Medical Center.  Meanwhile, PW1 did not find Deft on her bed and therefore conducted a search at the vicinity.  Upon reaching the lift lobby, 7/F, Wai Shun Block, PW1 found Deft sitting on her wheel-chair with two syringes between her thighs.  PW1 then seized the two syringes and locked into the locker.  At about 0645 hours on 2005-02-19, PW1 informed Medical Officer Dr. LAW Ka-fai with police informed.  PW2 was then deployed to handle the case.  At 0900 hours on the same day, Deft was arrested with exhibit seized.  Under caution, Deft admitted the offence.”

3.Both the syringes contained midazolam.

4.Next is the relevant portion of the magistrate’s Reasons for Sentence :

“	3.	After the appellant was convicted as charged, the court was informed that she had 19 previous convictions of which 13 were drug related.  She was also in breach of a suspended sentence.  She had been sentenced to 2 months imprisonment suspended for 12 months on the 3rd May 2004 in Case number NK 2401/04.  I called for a Drug Addiction Treatment Centre Report and the appellant was remanded in custody for 14 days.
	4.	The report was detailed and considered her not suitable for admission for several reasons.  She was a deep- rooted addict with a 16 years drug addiction and was not at all motivated to give up drugs.  She had been sentenced to the center 3 times in the past and after each release, relapsed into drug abuse.  The report concludes she is an incorrigible character and repeatedly failed to give up drugs.  Not only will she not benefit from a 4th admission but would be an adverse influence on other inmates.  Considering this report and her past record, there was no option but an immediate custodial sentence.
	5.	I took a 9 month starting point and gave her a one third deduction for her plea of guilty.  I sentenced her to 6 months imprisonment.  This offence was committed during the suspension period of case number NK 2401/04.  I also activated the suspended sentence she breached.  There was no reason not to and I made it consecutive.  She was sentenced to a total of 8 months imprisonment.”

5.Before me, counsel for the appellant raises four grounds :

“	a.	The learned Magistrate erred in law by imposing a sentence for the present offence which is manifestly excessive.
	b.	The learned Magistrate erred in principle on sentencing by adopting a starting point of nine months’ imprisonment when the accepted tariff for this offence after a guilty plea is three months’ imprisonment.
	c.	The learned Magistrate did not state any reason in adopting the starting point of nine months’ imprisonment in court.  In her ‘Reason for Sentence’, the starting point of the sentence appeared to be based on the DATC suitability report and the past record of the Appellant, i.e., that the Appellant is an incorrigible character and a repeated drug offender with thirteen previous drug related convictions, neither of which is an aggravating factor in enhancing sentence.  The learned Magistrate did not refer to any authority to support the said starting point.  The learned Magistrate had therefore departed from the accepted tariff for this offence without a valid reason.
	d.	The learned Magistrate failed to consider the totality principle in ordering the activated suspended sentence of 2 months’ imprisonment to run consecutively to the sentence of the present offence.  The total of 8 months imprisonment is manifestly excessive in the premises.”

6.Government counsel concedes that the customary sentence for this offence is 3 months’ imprisonment after plea, but stresses that that is not a straitjacket for magistrates.  She cites R. v. Law Sing [1996] 4 HKC 477, the relevant part of which reads :

“It seems established that a sentence in the order of three months’ imprisonment is the accepted tariff for cases of possession of instruments fit and intended to be used for the consumption of drugs.  But I do not think that magistrates are shackled to that term come what may.  Magistrates are entitled, indeed bound, to regard the circumstances of each case, and this magistrate was, in my judgment, quite right to take a more serious view of the matter because of the place and circumstances of the offence.  In my judgment, the display of the paraphernalia of drug consumption in a public place or on the staircase of a block of flats to which members of the public and youngsters have access, and can be expected to go is an aggravating feature which warrants an upward adjustment to the sentence, the more so if the circumstances of possession demonstrate that the person in possession had just used those instruments in that place.”

7.In all the circumstances of the present case, I do feel that the 6-month term imposed on the appellant is excessive.  Given that it was committed in a public hospital with all the possible health hazards thus incurring, I would substitute it with a term of four months, still to run consecutively to the 2-month suspended term now activated.  There is no reason for it not to.  Nor will it infringe on the totality principle.  That is my judgment.

8.The appeal is allowed to the extent mentioned.

Ms Fung Mei Ki, Mickey, GC of the Department of Justice, for HKSAR

Mr S.Y, Fan, Edward, instructed by Messrs Henry Lam & Associates, assigned by the Legal Aid Department, for the Appellant