HKSAR v. SO MUK CHI

HCMA3/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 3 OF 1999

(On appeal from NKC 7782 of 1998)

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J U D G M E N T

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1. On 14 December 1998 the appellant pleaded guilty before J L Saunders Esquire, magistrate, to the offence of possession of dangerous drugs, namely, a quantity of heroin. He was sentenced to 12 months' imprisonment. Of that term, three months was ordered to run concurrently with an existing sentence of eight months for another offence he was then serving, resulting in another nine months overall.

2. He appeals that sentence on the general ground that it is too severe.

3. The circumstances giving rise to his offending were that he was in detention following his earlier conviction of a dangerous drugs offence and sentence of eight months to which I have already referred. Whilst there, he was found to pass the drugs, the subject of this charge, that he had attempted to smuggle into prison.

4. The magistrate regarded prison as the appropriate sentence, following the reasoning of the Court of Appeal in Attorney General v AU Kwok-chai, A R 22/1995, and first, as the Dangerous Drugs Ordinance requires, called for a DATC report that had been ordered following the appellant's conviction for the earlier matter. That report is no longer on file but it was before the magistrate and that is what counts.

5. The sentence he then imposed was that which in AU Kwok-chai the Court of Appeal said was a proper sentence after plea for the offence of smuggling a small quantity of dangerous drugs into prison and cannot be faulted. The extent to which he ordered that it run consecutively with the term already imposed recognised the deterrent element that such a sentence must carry without offending the totality principle that he gave proper attention to.

6. The appellant before me today tells me that he has four children, presumably still dependent, he is remorseful and asks for a chance. These are not factors which warrant a reduction in a sentence that was neither manifestly excessive or wrong in principle.

7. His appeal is dismissed.