THE QUEEN v. TSE CHUNG-MAN

IN THE COURT OF APPEAL

_____________

___________

JUDGMENT

___________

McMullin, V.-P.:

1. The applicant, TSE Chung-man, was convicted after trial in the District Court. The charge before the court was possession of dangerous drugs for the purpose of unlawful trafficking under Section 7. The court accepted the explanation put forward by the defendant in his own defence and convicted him of simple possession of a quantity of 6.31 grammes of a mixture containing 1.60 grammes of salts of esters of morphine.

2. His explanation had been that he had these drugs in his possession for his own consumption. He had been arrested on the 26th April by a police party and was found in premises together with certain other people and upon search the drugs laid in the charge were found.

3. At the time when he was arrested, he was on bail in respect of another offence. He was subsequently charged with that offence which was an offence of trafficking in dangerous drugs, the date of that offence being laid as the 23rd March, 1984. He was convicted of that offence on the 15th May, 1984.

4. In passing sentence the District Judge took note of the previous record of the applicant and noting the conviction for trafficking on the 15th May, he said:

"Having regard to all the circumstances I considered that a sentence of 18 months' imprisonment was appropriate and that that sentence should be consecutive to the sentence the Defendant was already serving."

5. Before us today, the defendant makes the point that he had not had the benefit of a Drug Addiction Treatment Centre Report. This drew to our attention the fact that that had not been called for as it should have been under the provisions of Section 54A of the Dangerous Drugs Ordinance, which provides that no sentence other than a non-custodial sentence shall be imposed on a person for an offence against Section 8 - which was the section under which he was convicted in the present case - unless the court has considered the report of the Commissioner of the Correctional Services on the suitability of such person for cure and rehabilitation. That is a mandatory provision and the sentence imposed was therefore imposed without jurisdiction. We are obliged therefore to set aside that sentence.

6. We feel however that since the conviction was for simple possession under circumstances accepted by the Magistrate as disclosing that the drugs were in the possession of the defendant for his own consumption the sentence imposed is excessive, especially as it is made to run consecutively to the sentence previously imposed by another court.

7. We think that the needs of the present case, both from the point of view of the applciant and of the public, will be best served, if for the sentence of 18 months imposed by the District Judge, we substitute a sentence of 9 months. That sentence will be suspended for a period of three years. It is not therefore necessary for this court to delay further under Section 54A for the purpose of getting a Drug Addiction Treatment Centre Report since under that section a suspended sentence does not count as a custodial sentence.