HKSAR v. LI HOI SHAN

HCMA 667/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 667 OF 2001

(ON APPEAL FROM FLCC 465/2001)

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J U D G M E N T

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1. This is an appeal against a sentence of 10 months imprisonment imposed on the Appellant by Mr T S Jenkins sitting at Fanling Magistrates Court on 30 May 2001. The sentence followed the Appellant's conviction on his own plea of possession of two plastic bags of dangerous drugs.

2. The first plastic bag contained 20 plastic straw packets containing 8.50 grams of a mixture containing 3.52 grams of heroin hydrochloride. The second plastic bag contained 10 tablets containing a total of 0.18 grams of midazolam maleate.

3. Both bags were found by the police in the pocket of the Appellant's coat after the Appellant had been stopped while riding a bicycle outside an address in Ting Kok Road in the early hours of 27 January 2001.

4. The Appellant who appears in person before me today has argued that the sentence imposed upon him was too severe. He has referred to the fact that another defendant was sentenced to a lesser term of imprisonment at San Po Kong Magistracy allegedly having been found in possession of a greater quantity of drugs.

5. As I commented during the course of the Appellant's submissions, the facts of all cases are different as are the circumstances of the individual offender. What I must decide is whether the sentence imposed by the Magistrate in this case was appropriate in all the circumstances.

6. The learned Magistrate's reasons for the sentence he imposed cannot be faulted.

7. The Appellant had numerous previous convictions including nine for the offence of possession of dangerous drugs, two for the offence of possession of dangerous drugs for the purpose of trafficking and one for the offence of trafficking. The Magistrate obtained, as he was obliged to do so, a report as to the Appellant's suitability for detention in a drug addiction treatment centre. That report revealed that the Appellant was not a drug dependant and therefore would not benefit from compulsory drug addiction treatment.

8. Drug addiction treatment centre was therefore not an option open to the Magistrate. Even if it had been an option and the Appellant had been an addict, the history of the three previous occasions on which he had been sent to drug addiction treatment centre did not give any reason to suppose that he would take advantage of the opportunity such an order would give him.

9. The only realistic alternative open to the Magistrate was a term of imprisonment.

10. In considering the appropriate term, bearing in mind all the circumstances including the number of packets involved, the learned Magistrate was correct in adopting the 3-step approach approved by the Hong Kong Court of Appeal in HKSAR v Wan Sheung Sun, CACC 438/99.

11. The starting point of 12 months imprisonment adopted by the learned Magistrate was a proper one.

12. He was then fully justified in increasing that starting point by 3 months to take into account the latent risk of those drugs finding their way into other hands, bearing in mind the background of the Appellant and the number of packets involved. The reduction of one third to reflect the Appellant's plea of guilty was the conventional discount in such circumstances.

13. For the reasons I have given, the learned Magistrate's sentence was entirely proper, and I dismiss the appeal.