HKSAR v. NGAI SIN FAT

HCMA553/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.553 OF 2004

(ON APPEAL FROM STCC 528 OF 2004)

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J U D G M E N T

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1. The appellant was convicted on his own plea of one charge of 'Possession of Apparatus Fit and Intended for the Injection of Dangerous Drugs', contrary to sections 36(1) and (2) of the Dangerous Drugs Ordinance, Cap.134. He was sentenced to six months' imprisonment. He now appeals against sentence.

2. The facts were that the appellant was found collapsed in the toilet of his home. When the police arrived, they found beside the appellant a syringe containing traces of blood and suspected dangerous drugs later confirmed to be midazolam. A fresh needle mark was found at the inner side of his right thigh. Subsequently, the appellant admitted possession of the syringe for injecting dangerous drugs under caution.

3. Having alluded to fact that the appellant had 27 previous convictions 20 of which were drug related, and that he was not recommended for admission to a Drug Addiction Treatment Centre, the magistrate had this to say about sentence :

"The most powerful mitigation factor in the appellant's favour is his guilty plea.

He is a repeated drugs offender. I considered 9 months is an appropriate starting point. In view of his guilty plea, I reduced to 6 months."

4. Today, the complaint against the magistrate is that she had, without stating any reason, departed from the tariff, which is three months' imprisonment, after plea and without any aggravating factor : R. v. Law Sing, MA890/1996; HKSAR v. Lee Sheung Chuen, HCMA 109/2001.

5. The respondent concedes that the sentence is against the weight of the authorities.

6. The appeal is allowed. The sentence of six months is set aside. A term of three months is substituted.