HKSAR v. Chan Hung Hoi

HCMA1203/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1203 OF 2006

(ON APPEAL FROM ESCC 3891/2006)

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BETWEEN

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Coram:  Deputy High Court Judge Line in Court

Dates of Hearing:  30 March 2007

Date of Judgment:  30 March 2007

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J U D G M E N T

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1.This is an appeal against sentence for trafficking in a dangerous drug.  The sentence was 10 months' imprisonment on a plea of guilty.  The drug involved was midazolam.  The appellant had been caught in possession of 1,470 tablets containing 20.70 grammes of the drug.  The admitted facts showed that he purchased the drugs in Shenzhen for $5 a tablet and had brought them into Hong Kong to sell at $7 a tablet.  The appellant was a man with a very bad record, especially for drugs.  Included amongst his many previous convictions, were four cases of trafficking in dangerous drugs.  The last sentence for trafficking had been imposed in May of 2004 when he received 3 years and 4 months' imprisonment.  This offence was committed only shortly after his release from that term. 

2.The appeal is somewhat academic because Mr Boynton tells me he has only got four days left to serve so I will perhaps be briefer than I normally would in dealing with its merits. 

3.The magistrate took a starting-point of 15 months.  He was aware of the guidelines concerning methaqualone and their application by the courts to midazolam as set out in the case of Chan Chi Man.  Whether by the number of pills or by the weight of the midazolam itself, the case fell, prima facie, within the bottom discretionary band.  The magistrate took the view that the aggravations of bringing it into Hong Kong and committing the offence so shortly after being released from prison for trafficking and the previous convictions for trafficking in dangerous drugs aggravated the matter so that the right starting-point was two bands up in the third band. 

4.Today, in a helpful and frank exchange between bench and bar, Mr Boyton does not seek to argue that enhancement up into the next band, the second band, would not be appropriate.  This is a rehearing and the starting-point of 12 months would meet the merits of this case, in my view.  The third discount for the plea would result in a sentence of 8 months' imprisonment, the practical result of which is to save this man 4 days.  I will accordingly set aside the sentence of 10 months and substitute one of 8 months. 

5.This was a sentence passed by a very experienced magistrate, Mr Colin Mackintosh, now His Honour Judge Mackintosh.  Accordingly, his sentence has carried great weight in my consideration but, whilst acknowledging his great experience in these matters, it does not mean that I have exactly to share his view.  I am entitled to have one that is slightly different, and I do, but only modestly to the extent that I have indicated. 

6.The appeal is allowed and I shall substitute a sentence of 8 months imprisonment. 

Ms Kathie Cheung, Government Counsel, of the Department of Justice, for HKSAR

Mr David Boyton, instructed by Yaddy Cheung & Co., assigned by the Director of Legal Aid, for the Appellant