HKSAR v. Fok Wah Yau

HCMA1000/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1000 OF 2006

(ON APPEAL FROM KCCC 4594 OF 2006)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 17 January 2007

Date of Judgment : 17 January 2007

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J U D G M E N T

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1.The 55-year old appellant was convicted on his own plea of possession of a mixture containing 0.17 grammes of heroin and 0.09 grammes of midazolam.  He was sentenced to 12 months’ imprisonment after the magistrate adopted a starting point of sentence of 18 months’ imprisonment and allowed a one-third discount for the appellant’s plea of guilty.

2.The facts of the case were that the appellant, a long-term drug addict with 15 previous drug related convictions, had taken eight small packets containing the drugs as well as a syringe with him for his own consumption when he was admitted to hospital to undergo treatment for a complaint he suffers as a result of muscular atrophy in his limbs.  The drugs were found in a cabinet provided for the appellant’s use besides his bedside.

3.The appellant was found to be unsuitable for rehabilitation in a Drug Addition Treatment Centre, and the sentencing magistrate concluded that a deterrent sentence was required.  He said this :

“3.   ...A DATC report opined that he is unsuitable for their purposes notwithstanding that he is an addict.  I agreed with that conclusion.  I found that a deterrent sentence was right.  The defendant was not sentenced on his previous convictions but clearly he could not expect to be sentenced in the manner as a person of clear record who had pleaded guilty.  Bearing in mind all that was contained (and unchallenged) in the DATC report by way of background, and the fact that he had been in intentional possession of these items in a public hospital I found that after trial, 18 months in prison was right.

4.    After a full 1/3 discount for plea, I sentenced him to 12 months in prison accordingly.”

Ground 1

4.The appellant represented by Mr S.C. Lam, of counsel, complains the sentence imposed is manifestly excessive and wrong in principle.

5.I agree that the magistrate erred in principle, in that he did not adopt the three-step approach to sentencing which is required for offences of possession of dangerous drugs (see HKSAR v. Wan Sheung Sum, CACC438/1999, per Stuart-Moore VP.)  No indication is given by the magistrate as to what original starting point was taken, nor by how much it was enhanced because of any latent risk factor.  Accordingly I approach sentencing afresh.

6.These were small amount of drugs.  The standard starting point of sentence for possession of drugs which are for the possessor’s own consumption is, without taking into account any aggravating factor, normally in a range of 12 to 18 months.  But for a very small amount of drugs a lower starting point may be adopted, just as in my view for a larger amount approaching the limit of what an addict would normally have for his own consumption a higher starting point may be appropriate.

7.In the present case, the appellant possessed a quite small amount of a mixture of drugs and an appropriate starting point is nine months’ imprisonment.  There was some latent risk, however, that the drugs would fall into the wrong hands.  The appellant possessed the drugs in a public hospital ward.  The drugs no doubt were kept nearby other patients and the appellant had prior convictions for trafficking.  In my judgment, the starting point of sentence should be enhanced by three months to reflect the latent risk of the drugs falling into other hands.  The final starting point of sentence is therefore 12 months’ imprisonment.  From that must be discounted one-third to reflect the appellant’s plea of guilty.  There is no other mitigation.  The sentence is therefore eight months’ imprisonment.  That sentence is substituted for the existing sentence of 12 months’ imprisonment.

Ground 2

8.Mr Lam at one point submitted also that informal and voluntary counselling is now available for the appellant from a christian group to which he belongs.  He, in the course of the appeal, withdrew that ground.  In my view, he was right to do so.  Admirable though such charitable groups are, I do not think that it would be appropriate, except in exceptional circumstances, to set aside a prison sentence in whole or in part on the basis that such private and unsupervised counselling is available to an appellant should he wish to attend.  No doubt if the appellant is genuine in his wish to rehabilitate himself such counselling will be available to him upon his release from prison in the near future.

Ms Winston Chan, SGC (Ag.) of the Department of Justice, for the Respondent

Mr Lam Shun Chiu, instructed by Messrs Chong & Yen, as assigned by DLA, for the Appellant