HKSAR v. LAW SING

HCMA1235&1236/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL ACTION NO. 1235 & 1236 OF 1999

(ON APPEAL FROM ESC 3030 & 3218 OF 1999)

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J U D G M E N T

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1. The appellant in both these appeals came before C R MacIntosh Esquire, Magistrate, when he pleaded guilty to two charges of being in possession of a dangerous drug, namely .28 grammes of a mixture containing .06 grammes of heroin, and .03 grammes of a mixture containing traces of heroin and methaqualone. The magistrate sentenced him to imprisonment for 5 months in respect of each charge to be served consecutively. He now appeals sentence upon the general grounds that the term was too severe.

2. The magistrate dealt with both matters together and I propose to do the same. In the first, police officers on an anti-narcotic patrol searched the appellant and found on him the drugs the subject of that charge. In the 2nd, nine days later, officers on anti-burglary patrol found him in possession of the drugs the subject of that charge.

3. As he is bound to do, the magistrate called for a DATC report. But the appellant has an appalling record with some 60 previous convictions, the vast majority of which have been for possession of drugs or similar. He had been to DATC many times before in the 70s and 80s. As a 64 year old with an addiction going back 40 years or more, it was hardly surprising that he was not recommended for further treatment.

4. The magistrate formed the view that prison was the appropriate alternative. He adopted starting points of 12 months for each with a prospective reduction to 8 months for each for a plea. Because each offence was committed separately he said they should be served consecutively. Having regard to the principle of totality, he reduced the terms to one which totalled 10 months as I have stated.

5. In support of his appeal the appellant reiterates that the term overall is an excessive one and says that on previous occasions he has had to serve sentences running for a few days only. He asks the question: what is so different about this time?

6. It is apparent from a glance at the appellant's record that over the latter years of offending the sentencing courts have treated him as something of an old lag, a hopeless case, and for similar offending he has, with the occasional exception, been dealt with very leniently. Clearly this pattern lulled him into the belief that he could continue to offend virtually with impunity. As an indication of this his previous conviction pre-dated the first of these two offences by a scant seven days.

7. If he had formed this view it was a wrong one.

8. The offence of possession of drugs is a serious one carrying a maximum sentence on summary conviction of 3 years. An offender should not be entitled to expect continuing leniency because he is getting on in years and is a persistent offender. That sort of sentence sends quite the wrong message to offenders, actual and potential, and to society at large.

9. The magistrate said the appellant had reached the point where there was no justification for approaching his case in any way differently from other similar cases. In my view he was right to say so. His starting point of 12 months for each charge was within the accepted parameters for this offence and the sentences that he arrived at, deriving from a starting point of 15 months overall, recognises the principle of totality and cannot be faulted.

10. The appeals are dismissed.