R. v. LEUNG MOON WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.643 OF 1996

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1. The appellant pleaded guilty to one count of possession of dangerous drugs. He was sentenced to 12 months imprisonment. He now appeals against sentence.

2. The appellant was stopped and searched by officers while he was at the podium of Block 19 of Shek Kip Mei Estate. He was found to have eight packets containing 2.96 grammes of a mixture containing 0.43 grammes of heroin hydrochloride. He admitted that these drugs were for his own consumption.

3. The appellant is 38 years of age. He was married with two children. He was a hawker earning $8,000 a month. He said that he was the sole breadwinner of the family. He has a previous record. He started to break the law at the age of 14. Apart from the present offence, he had eight previous convictions, two of which were drug offences.

4. The learned Magistrate acknowledged that the quantity involved in this case was small. He referred to the case of R. v. So Ma Kwai, unreported, Cr. App. No.466 of 1992, where the court observed that a six to nine months imprisonment appeared to be the range of sentence for simple possession of dangerous drugs on a guilty plea, rising to 9 to 12 months for those with a history of multiple offences. The learned Magistrate then referred to the case of R. v. Chiu Hung Wong, unreported, Magisterial Appeals No.39 of 1993. That was decided after the change in the law which increased the maximum penalty for "simple possession". The learned Magistrate took the view that Chiu Hung Wong suggested a sentence in the region of 12 months after a guilty plea for simple possession. He also noted that there were upwards of a hundred new drug cases each week in the North Kowloon District indicating that this was a serious problem in the area. He therefore sentenced the appellant to 12 months imprisonment.

5. Counsel for the appellant relied on two main grounds. First, he submitted that the learned Magistrate was wrong to apply the Court of Appeal decision in Chiu Hung Wong and had failed to appreciate that that case dealt with a far larger quantity with a latent risk factor. The present case involved a much smaller quantity of narcotics. Counsel submitted that although the maximum penalty for simple possession had been increased from three years to seven years, the maximum sentence before a Magistrate remained the same. Counsel pointed out that in Chiu Hung Wong, the defendants were persons who had a chain of previous convictions, some including drug offences and yet they only got two years imprisonment. As a second ground of appeal, counsel submitted that although the appellant had some previous convictions, the most serious of those had been committed while the appellant was a teenager and that since he was married, the appellant had obviously become a more useful member of society.

6. The Court of Appeal in R. v. Sin Yau Ming [1992] 1 HKCLR 127 held that certain of the presumptions contained in the Dangerous Drugs Ordinance were inconsistent with the Bill of Rights. That Ordinance was then amended by Ordinance No.52 of 1992. The definition of "unlawful trafficking" has been extended to cover what was previously possession for the purpose of unlawful trafficking. The offence of simple possession under s.8 is retained. However, the maximum penalty for simple possession has been increased. Under the previous s.8(2), any person who is guilty of simple possession "shall be liable on conviction on indictment or summary conviction to a fine of $10,000 and subject to s.54A, to imprisonment for three years". The change to that subsection takes the following form :

"(a) on conviction upon indictment to a fine of $1 million and, subject to s.54A to imprisonment for seven years; or

(b) on summary conviction to a fine of $100,000 and subject to s.54A, to imprisonment for 3 years."

7. I think Counsel is right to point out that while the maximum penalty for simple possession upon conviction on indictment has been increased from three years to seven years, the maximum penalty on a summary conviction remains at three years (although the maximum fine has been increased ten times). I respectfully accept what Silke, V-P., said in Chiu Hung Wong at p.8 that :

"... it is now clear that the legislative temper is for very much stiffer penalties and the incarceration of those in possession of dangerous drugs for a much longer period than that earlier sentencing norm and the emphasis has moved away from the prior aim of rehabilitation, though the latter option is not removed in the light of the retention of section 54A unamended."

8. It seems to me that prior to June 1992 (when the Ordinance No.52 of 1992 took effect), if it was necessary to impose a custodial sentence, the normal tariff for simple possession ranged between 6 and 9 months imprisonment on a plea, rising to 9-12 months for those with a history of multiple offences for possession of drugs. That was the effect of cases such as The Attorney General v. Chan Tak King, Application for Review No.21 and 22 of 1988, R. v. Tsui Wai Kuen, Magisterial Appeals No.809 of 1991 and R. v. Lee Chi Wai, Magisterial Appeals No.810 of 1991 and R. v. So Ma Kwai, Magisterial Appeals No.466 of 1992.

9. Then came the case of Chiu Hung Wong. The Court of Appeal said, and I accept, that stiffer sentences should be expected. In that case the quantities involved in the two appeals were in the region of 30 grammes with a narcotic content of about 15 grammes. The sentences imposed on the appellants in those cases were in the region of two years after plea. However, I do not think the Court of Appeal had set down any guideline in that case. Hence I am not at all comfortable when the learned Magistrate in the present case said at p.16 of the Bundle :

"Chiu Hung Wong suggests a sentence in the region of 12 months after a guilty plea for simple possession."

10. I am unable to find any authority setting out what the normal sentence for simple possession would be after June 1992. Neither Counsel for the Crown nor Counsel for the appellant was able to draw my attention to any such authority.

11. In my view, it is clearly the intention of the legislation that the court should impose stiffer sentences for the offence of simple possession after June 1992. However, I do not think it is intended that there should be no longer any room for a rehabilitative sentence, that a defendant of such offence must go to prison or that even in appropriate cases, he cannot be dealt with by way of a fine or by an order of detention in a Drug Addiction Treatment Centre. Section 8 clearly retains the possibility of a fine (although the maximum has been increased manifold) and s.54A (which survives the amendment in 1992) retains the possibility of a DATC order. I think that in appropriate cases, a non-custodial or rehabilitative sentence (and for this purpose, I include a DATC order) is still available for the Magistrate. For instance, a very young and first offender who has become addicted only for a short time and clearly requires rehabilitation may be sent to a DATC and a persistent and aged addict of opium for several decades may be given a fine. On the other hand, where it is appropriate to impose a custodial sentence, I agree that stiffer sentences than the pre-June 1992 ranges should be imposed. In order to give effect to the legislative intention, I should think that post-1992, the normal sentence after a plea of guilty for simple possession should range between 9 and 15 months rising to 12-18 months or more. I say this bearing in mind that according to the guidelines set down in theLau Tak Ming case, the tariff for trafficking of dangerous drugs in the quantities up to ten grammes of narcotics is between two years and five years after trial and that the difference in seriousness between trafficking and possession cases ought to be reflected in the sentences imposed. However, I must not be taken to say that whenever an immediate custodial sentence is to be imposed, the starting point must be nine months of imprisonment. This would mean that there would be a jump from a fine or DATC order to a nine month term. That cannot be right. The court must have a discretion in sentencing matters. I should think that there must be appropriate cases where the court would think that a period of less than nine months would be proper although it is not appropriate to impose a fine or make a DATC Order. The length of an imprisonment term must depend on the facts of each case and the relevant factors include the amount of narcotics involved, the number of packets found, the latent risk in a case where the quantity of drugs is not insignificant, the addiction of the defendant, the previous character of the defendant, whether there is a history of multiple offences involving dangerous drugs and his personal circumstances.

12. In the present case although the narcotic contents were only 0.43 grammes, there were altogether eight packets. The appellant had two previous convictions of drug offences. While it is true that his previous convictions started when he was a teenager and that his last offences were in 1992, it cannot be said that he is a man of clear record or of previous good character. On the other hand, he is not a person with a history of multiple offences of a similar nature. He would, I should say, border on this later category. I take note that a sentence of 12 months on a plea would mean a sentence of 18 months after trial. With the quantity involved in this case, if it had been a case of trafficking, the court may give a sentence of two years after trial and approximately 16 to 18 months after a plea. The gap, in my view, is perhaps a little too small to reflect the difference in seriousness.

13. Having considered the circumstances in this case, I take the view that a period of nine months would be appropriate for this particular appellant with his background, previous history and the quantity involved. In the circumstances I would allow the appeal and reduce the sentence from 12 months to 9 months.