HKSAR v. Tsang Ma Yeung

[English Translation — 英譯本]
HCMA627/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 627 OF 2009

(ON APPEAL FROM TMCC 1873 OF 2009)

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BETWEEN

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Coram: Hon. D. Pang J. in Court

Date of Hearing: 23 October 2009

Date of Judgment: 23 October 2009

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JUDGMENT

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1.The appellant was convicted on his own plea of one count of Possession of Equipment Fit and Intended for Injection of a Dangerous Drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap. 134, Laws of Hong Kong, and was sentenced to 8 months’ imprisonment. He now appeals against his sentence.

Offence

2.The charge against the appellant is that on 23 May 2009, he had in his possession a syringe with needle at the 2^nd floor, no. 35, lane 2, Shui Tsiu Lo Wai, Tai Tong Road, New Territories.

Facts

3.The agreed facts show that ambulancemen, after receiving a report, went to the scene of the incident to give emergency treatment to a woman who had lost consciousness. Police officers who arrived at the scene at the same time found the syringe with needle involved in this case below a window in the flat.  The appellant was all along in the flat. He admitted under caution that the apparatus belonged to him and that 7 odd hours ago he had used the apparatus for injecting himself with heroin.

Sentence passed by the magistrate

4.The following is the description of the appellant’s personal background by the deputy magistrate who heard this case:

‘2. The appellant… before he committed this offence had 17 conviction records; 15 of which were related to dangerous drugs and 1 of which was for the same offence as the present one.

3. The appellant submitted in mitigation that he had made arrangements himself for admission to the drug addition treatment centre on Shek Kwu Chau run by the Society for the Aid and Rehabilitation of Drug Abusers, because he intended to get rid of the addiction voluntarily. I therefore called for a probation report and a D.A.T.C. report on him to see whether his effort to get rid of the addiction could be put under supervision through a probation order. Regrettably, the truth revealed by the probation report is that the appellant had already been admitted to the drug addition treatment centre on Shek Kwu Chau 4 times, and that he had left Shek Kwu Chau only 3 months before this offence. Furthermore, it is stated in the probation report that the appellant opposed firmly to other drug addiction treatment programmes proposed by the probation officer and that he just hoped for a short-term imprisonment. For these reasons, probation was not recommended in the report.

4. As for the D.A.T.C. report, the appellant was not recommended for receiving treatment at the D.A.T.C., because the appellant is a deep-rooted drug addict and criminal. He had been sentenced to D.A.T.C. 3 times but every time he failed to get rid of the addiction.

5. When I referred to his criminal record, I noted that in recent years he had been sentenced to imprisonment on a number of occasions, but after each imprisonment he committed the offence of possession of a dangerous drug again. It is clear that the previous sentences failed to have any deterrent effect on him.’

5.As far as the actual sentence is concerned, he stated:

‘6. I have referred to the case of Chan Chiu [transliteration, 陳昭] (HCMA 620/2000), where the trial magistrate said:

“Turning now to the actual sentence, although the offence involved in this case is possession of apparatus fit and intended for injection of a dangerous drug, the culpability of this offence is the same as that of possession of a dangerous drug; therefore, as far as sentencing is concerned, I think that there should not be any difference between these two offences.  On the basis of Queen v. Li Siu Man (HCMA 248/1996), I use 12 months’ imprisonment as the starting point.”

7. As a matter of fact, because Chan Chiu was suffering from tuberculosis and he was sentenced to imprisonment at the same time in relation to another case, the trial magistrate gave him further discount.  In the appeal hearing of that case, Tong J. applied the analysis made by the trial magistrate and dismissed the appeal.

8. I am also aware that subsequent to Chan Chiu, the court in the case of Yip Chun Fai [transliteration, 葉進輝] (HCMA 965/2005) had thoroughly considered the sentence for this offence and came to the conclusion that there was no sentencing guideline for this type of offence, but the usual sentence was 3 months’ imprisonment in the case of a guilty plea.  I have also referred to all the cases cited in Yip Chun Fai:       

……

d. In R. v. Law Sing [1996] HKC 477, which is a case about heroin, Stock J. (as he then was) took the view that a sentence of 6 months’ imprisonment after a plea of guilty was appropriate, and he remarked:

“9.    I do not take the court there to be saying that in cases where those particular aggravating features do not present themselves, anything in excess of three months is bound to be too high.  About three months happen to be the average.

12.    It seems established that a sentence in the order of three months’ imprisonment is the accepted tariff for cases of possession of instruments fit and intended to be used for the consumption of drugs.  But I do not think that magistrates are shackled to that term come what may.  Magistrates are entitled, indeed bound, to regard the circumstances of each case, and this magistrate was, in my judgment, quite right to take a more serious view of the matter because of the place and circumstances of the offence.”

9. For the above reasons, I am of the view that the cases after Chan Chiu also expressed the view that each case should be considered individually and there was no adoption of a uniform sentence of 3 months’ imprisonment.  I believe that in this case the appellant had in fact injected heroin into his body by using the syringe and he was not simply in possession of a syringe intended for the injection of a dangerous drug.  I therefore also think that the culpability of the appellant’s offence is the same as that of possession of a dangerous drug.  In other words, the culpability of a simple possession of a syringe intended for (but not yet carried out) the injection of a dangerous drug should be lesser than that of an offence of possession of a dangerous drug.  However, the usual case is that the police cannot stop the commission of the offence of injecting a dangerous drug in time before the defendant injects the dangerous drug, so that the defendant cannot be charged with possession of a dangerous drug and the charge of possession of apparatus for injection is the only option.  Under these circumstances, the defendant had injected the dangerous drug by using the syringe.  The culpability of the offence he committed is no different at all from that of possession of a dangerous drug.

10. Finally, the dangerous drug involved in this case is also heroin and the appellant is also a deep-rooted drug addict and criminal, so I also considered that 12 months’ imprisonment should be the starting point.  For his guilty plea, I gave him one third discount and his imprisonment was reduced to 8 months.  Accordingly, he has to serve 8 months’ imprisonment in this case.’

The appeal

6.Having considered the submissions from both sides, I come to the conclusion that 8 months’ imprisonment is indeed too severe.

7.In my judgment, it was wrong for the magistrate to equate Possession of Equipment Fit and Intended for Injection of a Dangerous Drug with Possession of a Dangerous Drug.

8.In Chan Chiu (supra), Tong J. did not expressly support treating the two offences in this way.  What he did was only to hold that a total sentence of 6 months plus 3 months, i.e. 9 months, could “never be said to be too severe” for a defendant who was faced with Possession of a Dangerous Drug and Possession of Equipment Fit and Intended for Injection of a Dangerous Drug at the same time and had a very bad record of previous convictions.  The trial magistrate of that case remarked that the “culpability” of these two offences were the same (but the sentence for the latter offence was reduced to 3 months due to factors such as the defendant was suffering from illness).  Tong J. did not comment on whether this approach was correct or not.

9.Furthermore, I am of the view that in cases where the court pointed out that a term of 3 months’ imprisonment was not a strait-jacket, and that the trial magistrate should increase the sentence to reflect the specially bad circumstances in each individual case, what the court referred to were only factors such as the apparatus involved had been used in a public place or had been shared by many people, which had nothing to do with other offences.  I do not think that the court should take into account what a defendant had done previously and increase the sentence because the defendant admitted that he had used a certain apparatus to inject dangerous drug.  This approach is no different from imposing a more serious offence on the defendant through the back door.

10.Actually, it is clear that the law is directed against apparatus “intended” to be used for injection.  That being the case, the fact that a certain apparatus had been used for injecting dangerous drug logically can only be evidence that this apparatus is “intended” to be used in future for the same purpose, but not a reason to increase the sentence.  This is my judgment.

11.When the legal representative of the appellant was mitigating before the magistrate, he disclosed that the woman who lost consciousness in the flat that day had drug addiction, and that before she fainted the defendant had used the syringe with needle involved in this case to inject her with dangerous drug.  This fact can likewise be used as evidence that the syringe with needle was “intended” to be apparatus which was to be shared by many people and constitutes a factor for increasing the sentence in this case.

Decision

12.I allow the appellant’s appeal and reduce the term of imprisonment from 8 months to 5 months.

Miss Hermina Ng, Public Prosecutor of the Department of Justice, for the HKSAR.

Mr. Andy Cheng, instructed by Solomon C. Chong & Co. for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.