HKSAR v. Lacroix, Stephane Pierre

HCMA612/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 612 OF 2009

(ON APPEAL FROM ESCC 2558 OF 2009)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 8 December 2009

Date of Judgment : 8 December 2009

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J U D G M E N T

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1.The appellant, a 35-year-old French national, was convicted on his own plea at Eastern Magistracy of an offence of possessing 1.57 grammes of cocaine.  He was fined $2,000 and sentenced to a term of 4 months’ imprisonment suspended for 2 years.  He appeals that sentence on the ground that it was wrong in principle and too severe. 

2.The appellant was in Hong Kong on a working visa at the time of the offence and had been employed as an architect.  He had a clear record and it was advanced in mitigation on his behalf that he had only infrequently taken cocaine.  It was common ground that he was not addicted to that or any other drug, though a urine test taken by the appellant returned positive results for cannabinoids. 

3.Mr McGowan who represented the appellant in this court, though not below, argues that as a probation report requested by the magistrate had found the appellant suitable for probation but had declined to recommend that course only because of the appellant’s likely removal from Hong Kong following his conviction, it was wrong in principle that a sentence of imprisonment, whether suspended or not, be imposed on the appellant in lieu of probation or some other order.  He points out also that the sentence of 4 months’ imprisonment, although suspended, will mean that the appellant will not qualify for the provisions of section 2(1) of the Rehabilitation of Offenders Ordinance, which for a sentence of 3 months’ or less would allow the conviction to become “spent” after 3 years. 

4.I do not see that a suspended sentence could be considered wrong in principle because of the failure of the reporting officer to recommend probation.  There may be many reasons for a defendant to be found unsuitable for probation and in such circumstances a sentence of imprisonment may then become appropriate.  In the present case the reporting officer was unable to recommend probation because of the likelihood that the appellant would not be able to remain in Hong Kong for the probationary period and would therefore not be able to be supervised as required.  In other words any probation order would be rendered ineffectual.  There is no principle in our law that I am aware of which would require that, in the event of an offender not being recommended for probation because he may have to leave Hong Kong, no sentence of imprisonment whether suspended or otherwise should be substituted.  In the circumstances of the present case there was nothing wrong in principle with a sentence of imprisonment being imposed.  That sentence was suspended and in those circumstances there was no need for the magistrate to comply with the provisions of section 54A(1) of the Dangerous Drugs Ordinance. 

5.Nor can the appellant complain about the sentence being too severe.  In HKSAR v Mok Cho Tik (2001) 1 HKC 261 Stock JA (as he then was) in dealing with the penalties for offences contrary to section 8 of the Ordinance said :

“We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. … But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.”

6.That case concerned the possession of 15 grammes of “ice”, and a starting point of 18 months’ imprisonment, before any risk factor was taken into account, was thought appropriate.  I might add it is quite obvious from the judgment that the comments of the court applied to hard drugs generally; cocaine being counted as such a drug. 

7.In the present case the appellant possessed a relatively small amount of drug.  I note however that there have been a number of cases which have adopted a starting point for the possession of small amounts of hard drug at the lower end of the range referred to in Mok Cho Tik : see for example HKSAR v Lai Siu Ming, HCMA238/1999; HKSAR v Leung Moon Wah, HCMA643/1996; HKSAR v Lau Wai Man, HCMA77/1999, and more recently HKSAR v Subba Siwani, HCMA1205 and 1225/2003; HKSAR v Tang Sze Woo, HCMA41/2003 and HKSAR v Cheung Hoi Lan, HCMA93/2003 all of which concerned less than 1 gramme of drug.  In my view the magistrate adopted a starting point in the present case which cannot be criticised as too severe, even accepting that the result was to carry the appellant out of the domain of the Rehabilitation of Offenders Ordinance. 

8.Mr McGowan asks, effectively on a humanitarian basis, that the sentence be reduced to one of 3 months’ imprisonment and suspended so as to bring the appellant back within the provisions of that Ordinance.  I do not think I should proceed on that basis.  It seems wrong to me to adjust an otherwise proper sentence either upwards or downwards so as to artificially bring it outside or within the provisions of the scheme : see HKSAR v Yeung Bik Shan, HCMA1183/2001 where Beeson J refused to adopt such a course and R v Jeffcoate (1980) CLR 61 where the English Court of Appeal expressed its strong disapproval of a sentencing judge imposing a sentence at a level designed to defeat the provisions of the equivalent English legislation. 

9.Mr McGowan has said everything that could be said for the appellant, but in my view the sentence of 4 months’ imprisonment suspended for 2 years was neither wrong in principle nor too severe.  The appeal is dismissed. 

Ms June Cheung, SPP of the Department of Justice, for HKSAR

Mr James H.M. McGowan, instructed by Messrs Vidler & Co., for the Appellant