HKSAR v. SZETO CHI WAI

HCMA 1009/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1009 OF 2000

(ON APPEAL FROM EASTERN MAGISTRACY
NO. ESCC 2858 OF 2000)

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J U D G M E N T

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1. On 10 August of this year the Appellant was convicted at Eastern Magistracy of an offence of possessing traces of the dangerous drug heroin. Those traces were found in a cigarette in his possession. The Appellant served a notice of appeal against conviction.

2. This morning he appears before me in person and it is quite plain to me upon enquiry of him that he does not wish to appeal against conviction, but against his sentence of 6 months' imprisonment. Accordingly I dismiss the appeal against conviction and grant the Appellant leave to appeal out of time against his sentence.

3. The learned Magistrate in imposing the sentence of 6 months' imprisonment for this offence (which as I say concerned no more and no less than traces of heroin) ordered that two months of the term of 6 months be served concurrently with a suspended sentence of 6 months which was activated upon his conviction for the present offence. In other words, the Appellant was ordered to serve a total of 10 months' imprisonment.

4. The Appellant complains to me this morning that that term of 10 months' imprisonment is excessive, and he invites me amongst other things, to make the 6 month sentence of imprisonment wholly concurrent with the activated suspended sentence of 6 months.

5. The Appellant has over 64 previous convictions going back nearly 40 years but those convictions are for relatively petty offences. He has only occasionally served sentences of imprisonment and those sentences have been short.

6. More particularly in the last 10 years he was sent to a drug addiction treatment centre in 1990: he was sent to prison for a term of one month in 1995. And he was sentenced to a term of 6 months' imprisonment in 1998.

7. It is in the light of that background that I have considered the question of totality. And having done so I have come to the view that it would be just in this case to allow that appeal against sentence to a very limited extent. I will not interfere with the term of 6 months' imprisonment imposed for this offence, but 3 months (not 2 months) of that sentence will be served concurrently with the activated suspended sentence. In other words, in total he will serve 9 months' imprisonment instead of 10 months.