R. v. CHU TIM LOI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.552 & 558 OF 1996

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J U D G M E N T

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1. The appellant was convicted of his own plea on 15th April 1996 of possession of a dangerous drug and was sentenced to 6 months imprisonment. On the same day, he was convicted of a further charge of possession of a dangerous drug and was sentenced to 9 months imprisonment. The sentences were ordered to run consecutively and consecutively to a term of 6 months imprisonment for possession of a dangerous drug which he was already serving.

2. The facts were that on 12th February 1996 whilst the appellant was held in Lai Chi Kok Reception Centre, he was found in possession of a quantity of drugs in the 1st appeal which he had swallowed, prior to attending North Kowloon Court on another case on 9th February 1996, for his own use after he had been detained. From the agreed facts and the facts put forward by the prosecution and agreed by the appellant, it appears that he was inside the isolation cell No.2 of Lai Chi Kok Reception Centre two days later on 14th February 1996 when the second quantity of drugs, i.e. the quantity of drug in the 2nd appeal, was found in his hand.

3. Mr Chan urges upon me that the fact he was placed in an isolation cell after the discovery of the first packet of drugs, indicates that he was removed from the possibility of further obtaining drugs and that the second packet of drugs can reasonably be inferred to have come from the same source as the first packet. He argues that the magistrate was wrong, not in the sentence which he assessed, particularly, although I will come to that in a moment, but in the totality of the sentence he passed. He referred me to the case of The Attorney General v. Au Kwok Chai, Application for Review No.22 of 1995. In that review, the Court of Appeal considered a matter almost identical to this. There the Court of Appeal, and I respectfully agree, found that the taking of drugs into prison was a serious matter and as an offence of the kind which particularly called for a deterrent sentence. A deterrent sentence imposed not only to deter the offender but also to deter others who might be like-minded. In that case, a similar quantity of drugs was held to attract a sentence of 12 months imprisonment after a plea. The Court of Appeal there, and with respect I agree, held that the approach for the magistrate was first to assess the proper sentence for the offender being dealt with and only when that sentence had been assessed to consider the totality of the sentences passed. Although Mr Chan does not argue strongly concerning the sentences passed in respect of these two appeals, he does concede they ought to have been in the vicinity of 12 months imprisonment rather than the periods of 9 months and 6 months imposed, with that I agree. With the matter of totality, however, he takes issue. It is his argument that the drugs having been taken into prison at the same time, or that being the reasonable inference to be drawn, and the inference in favour of the appellant that ought to be drawn, the sentences ought not to be consecutive but should be concurrent, with this I also agree. He goes on to argue that the whole of the sentence of 6 months already imposed should not have been consecutive with the two sentences passed in these two appeals but that half that sentence ought to have been concurrent. Dealing with the first point that the magistrate ought to have assessed the proper sentence, I hold that the sentences are inadequate and that in respect of each of these appeals, the proper sentence ought to have been 12 months imprisonment. I hold that those two sentences of 12 months imprisonment ought to have been concurrent. In respect of the sentence already being served by the appellant that was a separate and distinct offence but of the same nature. I do not consider that there should have been any overlap with that sentence and that the whole of that sentence ought to be consecutive with the sentence passed in respect of these two appeals. The appeal in respect of each of these appeals is allowed, the sentence of 9 months and 6 months respectively is set aside and a sentence of 12 months imprisonment in respect of each appeal is imposed in place thereof. Both sentences are to run concurrently and consecutively with the sentence being served by the appellant in North Kowloon Case No.20481 of 1995.