HKSAR v. TONG KAR MING

HCMA 565/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 565 OF 1999

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J U D G M E N T

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1. In this particular case, the Appellant was charged with possession of dangerous drug. The particulars stated that the Appellant, on 22nd March 1999, at the podium of Maple Street Playground, Shamshuipo, had unlawfully in his possession a dangerous drug, namely 0.16 gramme of a mixture containing 0.1 gramme of heroin hydrochloride.

2. On 19th May 1999, the Appellant appeared before Mr Saunders sitting in North Kowloon Magistracy, and pleaded guilty to the charge. He was represented by the Duty Lawyer then.

3. The Appellant had a total of 65 previous convictions of which 18 were similar. His last dangerous drug related conviction was in 1996. He was sentenced to nine months' imprisonment. A Drug Addiction Treatment Centre Report was obtained on the Appellant, but his case was not recommended for treatment as he had been to the Centre twice before. In his mitigation, the Duty Lawyer pointed out that the Appellant, aged 59, was living on public assistance, and that he only used drugs to relief pain. The Duty Lawyer also reminded the Court of the small quantity involved.

4. The learned Magistrate adopted 12 months as the starting point and imposed nine months after giving a one-quarter discount for the plea. The one-third was not granted because of the belated plea. The Appellant now appeals against that sentence.

5. The main ground of his complaint is that his sentence appears to be longer than the other cases; that he is old and it is now his turn to receive public housing.

6. I have to say I do not see any merit in any of the matters raised. Regarding the difference in sentences, obviously, each case must turn on its own facts and one cannot just compare the final figures. The Appellant is on public assistance, instead of using this public money for his livelihood, he relied on that to maintain his addiction. If he loses his right to public housing because of the present offence, he has no one to blame but himself and his addiction, which he lacked the determination to resolve.

7. Having read the transcript and the Reason for Sentence, I do not consider the sentence to be wrong in principle or manifestly excessive. I, therefore, shall dismiss the appeal accordingly.