HKSAR v. Le Van Son

HCMA 529/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 529 OF 2011

(ON APPEAL FROM KCCC 1761 OF 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 22 November 2011

Date of Judgment: 22 November 2011

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J U D G M E N T

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1.The Appellant pleaded guilty in the Magistrate’s Court before Ms Bina Chainrai to both of the charges brought against him. Charge 1 was of unlawful trafficking in dangerous drugs, namely 0.l8 grammes of a mixture containing 0.13 grammes of heroin hydrochloride. He sold those drugs, wrapped into a pellet which he took out of his mouth, to an undercover police officer. Charge 2 was of unlawful possession of dangerous drugs, namely 0.93 grammes of a mixture containing 0.67 grammes of heroin hydrochloride. Those drugs, wrapped as 5 pellets, were excreted by him following his arrest. It is common ground that he had these 5 pellets in his mouth at the time of his arrest and swallowed them following his arrest.

2.On Charge 1, the Magistrate adopted a starting point of 2 years.  She then discounted it by a third for the guilty plea to arrive at a sentence of 16 months’ imprisonment. 

3.On Charge 2, the Magistrate adopted a starting point of 9 months.  She then discounted it by a third for the guilty plea to arrive at a sentence of 6 months’ imprisonment.  Ordering that the two sentences be served consecutively, the Magistrate sent the Appellant to prison for a total of 22 months. 

4.It is submitted on the Appellant’s behalf that it was wrong in principle to order that the sentences be served wholly consecutively.

5.In my judgment, the overall sentence imposed by the Magistrate is an appropriate one and ought not to be disturbed, although it may have been appropriate to arrive at that total by a higher starting point on Charge 2 and sentences running partly consecutively and partly concurrently.  

6.In the result, the appeal against sentence is dismissed.

Mr B K Ho, instructed by Messrs T C Lau & Co (assigned by the Legal Aid Department), for the Appellant

Ms Noelle A Chit, of the Department of Justice, for the Respondent