CACC 371/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 371 OF 2008

(ON APPEAL FROM DCCC 427 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

1.  The appellant was convicted of trafficking in a dangerous drug and sentenced to 5 years and 9 months’ imprisonment.

2.  On 8 October 2010, we allowed an appeal by the appellant against the conviction and we substituted therefore a conviction for possession of dangerous drugs contrary to s 8 of the Dangerous Drugs Ordinance, Cap 134. The originally sentence was set aside.

3.  Pursuant to the requirement of s 54A of that Ordinance, we directed the preparation of a Drug Addiction Treatment Centre Report on the appellant’s suitability for rehabilitation and remanded him in custody for that purpose.

4.  We now have the benefit of a DATC report, which states that the appellant is no longer a drug dependant and is therefore not considered to be suitable for admission to a drug addiction treatment centre. That being the case, the only option is one of an immediate custodial sentence.

5.  This case involves quite a substantial quantity of heroin with a retail value of about $18,000 and it carries with it a clear latent risk factor. Mindful of the fact that the appellant is a persistent offender with no less than seven previous convictions for the same offence, we think a suitable starting point for such a quantity, namely about 25 grammes of heroin, is 20 months’ imprisonment, and that another 10 months should be added to reflect the latent risk factor. An overall starting point should be 30 months.

6.  The appellant had wished to plead guilty to possession of these drugs at the outset and he should be entitled to a one-third discount for that plea. The sentence should therefore be 20 months’ imprisonment.

7.  Accordingly, we set aside the term of 5 years and 9 months’ imprisonment imposed on the appellant and substitute therefore a term of 20 months’ imprisonment.