HKSAR v. Pang Hin Tak

HCMA833/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.833 OF 2006

(ON APPEAL FROM KTCC 2545 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 28 September 2006

Date of Judgment : 28 September 2006

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J U D G M E N T

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Applicable principles on costs

1.The appellant pleaded guilty to one count of “possession of a dangerous drug”, contrary to section 8(1)(a) and (2) of the Dangerous Drug Ordinance, Cap.134 and was sentenced to 6 months’ imprisonment.  He also pleaded guilty to one count of “resisting a police officer acting in the execution of his duty”, contrary to section 63 of the Police Force Ordinance, Cap.232.  He was sentenced to 2 months’ imprisonment for that offence.  Both sentences were ordered to run concurrently by the learned magistrate.  The appellant now only appeals against the sentence imposed on the dangerous drugs offence.

Admitted facts

2.The admitted facts disclosed that during a stop and search, the police found one tablet containing 0.01 gram of midazolam on the appellant’s person.  He resisted the police by putting up a struggle after the police declared arrest on him and he was finally subdued.

The appellant’s background

3.The appellant is a 45-year old hair salon worker, earning $7,000 to $8,000 a month.  His wife and two children (aged 4 and 1) all live in the Mainland.  He has four previous convictions and two were drug-related.  His last drug-related conviction was in 1989.

Reasons for sentence

4.The learned magistrate adjourned the case for a Drug Addiction Treatment Centre (“DATC”) report after the appellant pleaded guilty.  He was found suitable for treatment.  However, the learned magistrate learnt that the appellant was then serving a 2-month sentence for theft.  After referring to the case of HKSAR v. Lam Man Wo (2004) 1 HKLRD 278 — which is a decision of mine, the learned magistrate considered a term of imprisonment instead of a DATC order.  The learned magistrate adopted a starting point of 9 months and reduced it to 6 months to reflect the plea. 

5.After the appellant filed his appeal against sentence, the learned magistrate has this to say in the Reasons for Sentence :

“7.   For Charge 1, I imposed a 6 month sentence but on reflection, after considering the authorities of HKSAR v Yiu Chi WaiHCMA624/97 and HKSAR v Chim Chak Yiu HCMA743/03, I find the sentence to be on the high side.  Taking into account the nature of the drug, the very small quantity and his 2 previous similar convictions, a more suitable starting point would have been 3 months.”

Grounds of appeal

6.Mr P.Y. Lo, counsel for the appellant, referred to the learned magistrate’s ‘change of heart’ and submitted the starting point of 9 months is manifestly excessive.  Though the learned magistrate has indicated the appropriate starting point would have been 3 months, Mr Lo submitted, with reference to the case of Chim Chak Yiu and HKSAR v. Wong Kap Si, HCMA640 & 702/2005 and submitted that the appropriate sentence after plea is one of one month.

Respondent’s response

7.Ms Rosaline Leung, Senior Government Counsel for the respondent referred to the case of Yiu Chi Wai and submitted in that case the appellant was convicted of possession of 0.0038 gram of midazolam, which was much less in weight than the present case.  The appellant in that case has 15 previous convictions with 6 being drug-related.  He was sentenced to 9 months’ imprisonment after trial.  On appeal, the sentence was reduced to 3 months.  Ms Leung submitted it was logical that the learned magistrate considered a 3-month starting point appropriate.

8.Ms Leung drew to my attention that Deputy Judge Pang was incorrect when he said in Chim Chak Yiu that the sentence of the appellant in the case of HKSAR v. Tsang Man Hoi, HCMA98/1999 was reduced to one month on appeal.  In Tsang Man Hoi,the appellant admitted possessing 0.037 gram of midazolam and on appeal the sentence was reduced to 2 months.

9.Ms Leung also refers me to HKSAR v. Chan Hung Yau, HCMA183/2002.  In that case the appellant was charged with possession of 13 mg of midazolam.  He also assaulted the police officer.  He was sentenced to 4 months for the possession charge and 6 months for the assault charge, both sentences to run consecutively.  On appeal, the sentence for the assault charge was reduced to 2 months and for the possession charge, to 3 months.  The order for the two sentences to run consecutively was not disturbed as Lugar-Mawson J found the approach entirely correct.

10.Ms Leung also prayed in aid the case of Secretary for Justice v. Ko Wai Kit [2001] 3 HKLRD 751, where the appellant admitted driving dangerously and resisting police officers in the due execution of their duties.  The Court of Appeal criticized the district court judge’s approach in saying the resisting charge is “part and parcel” of the dangerous driving charge.  The Court of Appeal ruled that subject to totality, the sentences should be consecutive.

11.Ms Leung submitted that the correct starting point here is one of 3 months and the sentence should run consecutively to the sentence imposed for resisting a police officer.

Judgment

12.Having heard the submission and perused the relevant authorities, I agree with Ms Leung’s submission that in Chim Chak Yiu, the learned deputy judge was incorrect when he said that in Tsang Man Hoi, the sentence was reduced to that of one month on appeal.

13.Having said that, I have to bear in mind that the possession involved here was of one tablet containing 0.01 gram of midazolam.  The appellant’s previous two drug-related convictions could not be said to be bad.  There is also a gap of 17 years between the last offence i.e. the drug-related offence, and the present one.

14.In my view, a starting point of 6 weeks’ imprisonment properly reflects the criminality involved in the possession charge.  With the one-third discount for the plea, the sentence is one of 4 weeks.  On the authority of the Court of Appeal’s decision in Ko Wai Kit, subject to totality principle, the sentence for possession is to run consecutively with the sentence imposed for resisting a police officer.  The three months sentence in total does not offend the totality principle. 

15.I therefore allow the appeal to the extent that the sentence imposed is set aside, to be substituted by a sentence of 4 weeks’ imprisonment; the sentence is to run consecutively to the sentence imposed for the resisting charge.

Ms Rosaline Leung, SGC of Department of Justice, for HKSAR

Mr P.Y. Lo, Counsel assigned by Director of Legal Aid, for the Appellant