R. v. FUNG MUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.332 OF 1995

___________

_______________

J U D G M E N T

_______________

1. The appellant pleaded guilty to possession of dangerous drugs which were in fact one cigarette containing traces of heroin. He was sentenced to 7 months' imprisonment and now appeals against that sentence.

2. The facts are very simple. He was stopped by the police in the street and found to be holding a cigarette. It appears that the appellant is 60 years old and has been a long time drug addict for 30 years. He has been unemployed for the last 7 years due to poor health and is now on public assistance. The magistrate called for a D.A.T.C. report but this was not recommended.

3. The learned magistrate referred to a number of authorities such as The Attorney General v. Chan Tak King and Chan Pau Yau [1989]2 HKLR 428 and the R. v. So Ma Kwai [1993]1 HKCLR 92 which said that for persistent multiple offenders of possession of drugs, a fine would be wrong in principle and that a sentence of imprisonment in the range of 6 to 12 months would be appropriate. The learned magistrate also referred to the change in the legislation which increases the maximum sentence for simple possession. He pointed out that, however, the maximum sentence on summary conviction remains the same. The magistrate also referred to a number of post legislative change cases by the Court of Appeal in which the Court had indicated that stiffer penalties would be imposed. The learned magistrate took into consideration the circumstances of the appellant; he followed the guideline and imposed a sentence of 7 months.

4. I accept that since the change of law in the maximum sentence for simple possession, stiffer sentences would be warranted. However, I notice that the maximum for this offence on summary conviction remains the same. It seems that the legislature still thinks that there might be cases where, for example, drug addicts have possession of the drugs for their own use and the latent risk of danger to the public is not increased in those cases. The only risk of danger in cases like the present would be to the appellant himself. He is the only victim. The cases of Chan Tak King and So Ma Kwai, in my view, are clearly distinguishable. In both cases, it involved quantities of over 4 grammes of heroin. In the present case, with respect to the magistrate, I think he had failed to consider that there is only one cigarette involved which was most probably for his own consumption.

5. The appellant is a long time drug addict and is now 60. Although this is not an excuse for a more lenient sentence, however, I think it will be difficult and unrealistic to expect that he would, at this age, after 30 years of drug addiction has any determination to quit the habit. No one can help him except himself. He has 16 previous convictions of which 14 are similar and he had been to a D.A.T.C. on three previous occasions. He has been in custody since 15th February 1995. The period of custody up to now is more or less equivalent to a sentence of 6 months' imprisonment already. I think he has been sufficiently punished for possession of this single cigarette. In the circumstances, I would allow the appeal and reduce the sentence to enable his immediate release.