HKSAR v. Cheng Wai Man

HCMA 617/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 617 OF 2012

(ON APPEAL FROM TMCC 1450 AND 1968 OF 2012)

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Before : Hon Barnes J in Court

Date of Hearing : 17 October 2012

Date of Judgment: 17 October 2012

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J U G M E N T

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1.The appellant pleaded guilty to two charges of possession of dangerous drug (in TMCC 1450/2012 and 1968/2012), contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 314 and was sentenced to be detained at a Drug Addiction Treatment Centre (“DATC”) for both cases. The appellant appealed against his sentence.

SUMMARY OF FACTS

TMCC 1968/2012

2.On 20 April 2012, the appellant was intercepted by the police in Fu Tai Estate.  Upon search the police found the appellant holding a plastic bag in his left hand.  Inside that bag there were five packets containing a total of 3.78 gms of a crystalline solid containing 3.69 gms of methamphetamine hydrochloride, commonly known as “ice”.  The appellant was arrested, and under caution the appellant admitted he possessed the dangerous drug in question for his own consumption.

TMCC 1450/2012

3.The facts disclosed that on 7 May 2012 (clearly when the appellant was on bail for the previous case), the appellant was observed by the police to be acting suspiciously at a park at Tai Hing Estate.  Upon search the police found eight packets containing 0.28 gm of a crystalline solid containing methamphetamine hydrochloride.  The appellant maintained silence under caution.

REASONS FOR SENTENCE

4.The learned magistrate called for a DATC suitability report prior to sentence.  The appellant was a drug‑dependant in the opinion of the medical officer and he was considered suitable for admission to a DATC.  There was a place available for him.

5.The learned magistrate, after setting out the background of the cases, said (at page 24 of the Appeal Bundle):

“1. The appellant had 5 previous similar convictions in 2001, 2006, 2008, 2009 and 2010. He had been sentenced to DATC before in 2001 and 2009.

2. In mitigation it was submitted that the appellant had been in custody for the past 3 months. He had been twice sentenced to the DATC without benefit. He preferred a prison sentence to DATC.

3.       The drug involved was one of the most harmful of dangerous drugs.  The appellant was still a young man in his early thirties and I believed that bringing about his rehabilitation should still be an important consideration in his sentencing.  In my view, it was too early to close the door on rehabilitation just because of 2 previous failures at DATC to bring about his long-term rehabilitation.  In the opinion of the medical officer he was a drug dependant and he was considered suitable for admission to DATC.  I therefore sentenced him to DATC in both cases.”

GROUNDS OF APPEAL

6.The appellant, who was not legally represented, advanced the same grounds that he had advanced through counsel before the learned magistrate.  His main ground was that he had been in custody for the past three months, and by sentencing him to a DATC it would amount to double punishment.  He therefore asked to be sentenced to a prison term instead, even bearing in mind that two incidents were involved and he was on bail while he committed the 2^nd offence.

MY CONSIDERATION

7.Having considered the facts of the case, the background of the appellant and the reasons given by the learned magistrate for the sentence, I find that the magistrate acted properly when sentencing the appellant to a DATC. 

8.Whilst I understand the appellant’s own wish to be sentenced to a term of imprisonment, I agree with the learned magistrate that bringing about the appellant’s rehabilitation is an important consideration.  I find nothing wrong with the sentence imposed on the appellant by the learned magistrate. 

9.There are no valid grounds of appeal advanced at all.  The appeal is dismissed.

Miss Lo Sum Yee, Rosa, PP of Department of Justice, for HKSAR

Appellant in person, present