HKSAR v. CHUNG KAM

HCMA758/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.758 OF 1999

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J U D G M E N T

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1. The Appellant was charged with trafficking in dangerous drugs in that on 2 March 1999, at outside Room 1626, Sau Yuen House, Chuk Yuen South Estate, Tse Wan Shan, Kowloon East, he unlawfully trafficked in a dangerous drug, namely 20 packets containing 6.29 grammes of a mixture containing 3.83 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2. He was convicted after trial and the Magistrate sent him to prison for 20 months, having fully taking into account factors of mitigation addressed by the Appellant's Counsel to the Court. In mitigation, it was submitted that the Appellant was 70 years of age, his wife had died and he was living alone. It was also submitted and accepted by the Magistrate that the Appellant was not engaged in directly selling the drugs but was storing the drugs for his own supplier for an insignificant reward of $20 and some drugs for his own consumption.

3. While the Magistrate seemed to accept that storing the drug for another was a less culpable form of trafficking than directly selling it, he did not consider that as a factor which called for a substantial discount, because he was of the view that the activities of drug traffickers would be severely hampered if it were not for people such as the Appellant providing assistance for reward.

4. The Magistrate had already given substantial discount for the Appellant's age. I must say that 20 months' imprisonment is lienent. The Magistrate also took into account an eight months' prison term imposed in another case which was for possession of a dangerous drug, the narcotic content of which was 4.77 grammes of heroin hydrochloride. The Magistrate took into account the Appellant's age and the totality principle to order four months of that eight months' sentence to run concurrently with the sentence of 20 months, making a total of 24 months in all.

5. The Appellant has not been able to present any ground of appeal to me to show that the sentence is excessive or that the Magistrate had erred in anyway. I do not find the Magistrate's approach towards sentence has any defect at all. In the circumstances, the appeal against sentence is dismissed.