Attorney General v. Wong Kwok Kwong

CAAR000012/1989

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Duffy, J.

Date of Hearing: 10 November 1989

Date of Judgment: 10 November 1989

Date of Handing Down of Reasons: 23 November 1989

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J U D G M E N T

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Hon. Yang, C.J.:

1. This is the Attorney General's application for review of sentence.

2. The respondent was a remand prisoner in a case to be heard in the North Kowloon Magistracy. He had been detained in the Lai Chi Kok Reception Centre since 8th August 1989 whilst on remand.

3. In the afternoon of the 11th August, an officer of the Reception Centre conducted a search in the respondent's room and found a plastic bag containing 1.49 grammes of a mixture containing 1.10 grammes of salts of ester of morphine. In the same evening the respondent was charged with possession of a dangerous drug. The respondent said under caution that he had "conveyed" the drug to the Reception Centre in order to satisfy his own craving.

4. The respondent appeared before Mr. Jenkins, a magistrate sitting at North Kowloon, on 18th August 1989 and the case was adjourned to the 1st September. The case then came before Mr. Jennings on 1st September and the respondent pleaded guilty to the charge. On the 22nd August the respondent had already been sentenced to two years' imprisonment for possession of dangerous drugs for the purpose of unlawful trafficking, the offence for which had been remanded since 8th August.

5. In his Reasons for Sentence Mr. Jennings clearly acknowledged the gravity of the offence now under consideration. He stated that, in a case where dangerous drugs are taken, or caused to be brought, into an institution under the Correctional Services Department, the situation "demands, in principle, a prison sentence consecutive to any other sentence being served".

6. He then went on to say:

"By the time the defendant pleaded guilty before me on 1st September, he had commenced serving a prison sentence for possession of drugs for trafficking imposed on 22nd August. Had that sentence been of short duration of, say, 6 or 9 months, I would certainly have had in mind imposing a consecutive sentence of say, 3 months. The sentence being served, however, was one of 2 years' imprisonment. Had it been possible to do so, I would probably have marked the principle involved by a consecutive sentence of, say, 1 month's imprisonment, though I doubt if a man facing a 2 years sentence is much impressed by 1 or a few months being added to it. However, I could't impose even a 1 day prison sentence without calling for a DATC report. I did not consider it worth the trouble involved to the Intake officer, Medical officer and Duty Lawyer to remand the defendant for a further 2 weeks for a DATC report simply in order to mark a principle. I therefore ordered an Absolute Dishcarge as the only other method available to me of 'clearing the books' of the case before me."

7. Before going on to consider the law, it should be noted that the respondent pleaded guilty, had in his possession a small quantity of drug, and intended it for his own consumption. On the other hand he had 40 previous convictions, 19 of which were similar. The first conviction for a drug related offence was in 1968 and the last on 22nd August 1989.

8. In The Attorney General v Chan Tak-king (Application for Review No. 21 of 1988) this Court said that fines imposed on persistent offenders were wrong in principle and immediate custodial sentences were appropriate. In an earlier case Chu Ki v The Queen (1965) HKLR 600, Huggins, J. (as he then was) set aside a sentence of 15 months' imprisonment and substituted a sentence of two and a half years for possession of dangerous drugs in the Victoria Remand Prison. In Chan Kwan v The Queen (Criminal Appeal No. 612 of 1969) Rigby, S.P.J. (as he then was) upheld a sentence of two and a half years' imprisonment for possession of dangerous drugs in prison.

9. On behalf of the Attorney General it is argued that whilst S. 8(2) of the Dangerous Drugs Ordinance, Cap. 134, provides that any term of imprisonment for the of offence of simple possession of dangerous drugs is subject to S. 54A, the magistrate appears to have been unaware of the 1987 amendment thereto - the new S. 54A(1A) which stipulates that Subsection (1) shall not apply where a person convicted under S. 8 is, at the time of conviction, serving a sentence of more than nine months’ imprisonment. The learned magistrate could therefore have sentenced the respondent to prison without calling for a report from the Drug Addiction Treatment Centre in pursuance of Subsection (1). We accept this contention.

10. The next issue relates to the conditions precedent to the imposition of an absolute discharge. These are prescribed by S. 36 of the Magistrates Ordinance, Cap. 227. There is nothing in the present case to satisfy those conditions. An absolute discharge was therefore wrong in principle.

11. In all the circumstances, and bearing in mind the totality principle, we are satisfied that it would have been proper for the learned magistrate to impose a sentence of nine months' imprisonment for the present offence, sentence to run consecutively to the two years he was already serving. Since this is a review, we would follow the normal practice of giving a discount, in this case three months, and pass a consecutive sentence of six months in lieu of the absolute discharge.

12. The application is allowed to the extent indicated.

Representation:

Mr. I.G. Cross & Miss P. Lee for AG/Applicant

Mr. Guy M. Holland (DLA) for Respondent