HKSAR v. YEUNG KWOK WAI

HCMA 796/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 796 OF 2011

(ON APPEAL FROM ESCC 2950/2011 & KCCC 3015/2011)

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BETWEEN

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JUDGMENT

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1.  The Appellant was charged with one charge of possession of dangerous drug in each of the following cases : ESCC2950/2011 and KCCC3015/2011. He pleaded guilty in the Eastern Magistrates’ Court for both charges and was sentenced to a total of 14 months’ imprisonment by the Acting Principal Magistrate (hereinafter called the Magistrate for convenience sake) as follows :

          ESCC2950/2011 :  8 months’ imprisonment; and

          KCCC3015/2011 :  12 months’ imprisonment.

2.  The Magistrate further ordered that 6 months of the sentence imposed in KCCC3015/2011 to run consecutively to the other sentence, making a total sentence of 14 months’ imprisonment.

3.  The Appellant appeals against the sentences.

4.  At the appeal hearing, the Appellant appeared in person.  The hearing at the Magistrates’ Court was presided over by an English speaking Magistrate.  I acceded to the request of the Appellant that this hearing be conducted in Punti on condition that my judgment would be prepared in English.

Facts of the cases

ESCC2950/2011

5.  On 18 July 2011, the Appellant was intercepted at the staircase of a residential building.  Upon search, three plastic wrappings containing 0.28 grammes of a mixture containing heroin and one resealable plastic bag containing 0.20 grammes of ice, were found inside his left shoe. He admitted under caution that the drugs were for his own consumption.

KCCC3015/2011

6.  On 26 July, when the Appellant was in the Lai Chi Kok Reception Centre, a search of his personal clothing revealed a further plastic wrapping containing 0.12 grammes of a mixture containing heroin, inside the zip of his trousers.

The Appellant’s Antecedent and mitigation

7.  The Appellant is 46 years of age.  He has numerous previous convictions including once for the offence of possession of dangerous drug for the purpose of unlawful trafficking back in 1988 and 11 times for the offence of possession of dangerous drug between 1988 and 2005.

8.  In mitigation, the Court was told that the Appellant had been working in a kitchen earning about $8,000 - $9,000 per month.  He has high blood pressure and some sort of health problems.

9.  The court was informed that the Appellant forgot to tell the officers that the dangerous drug in relation to KCCC 3015/2011 was there when he was detained.  It was said he did not have the intention to use the drug when he was in custody.

10.  The court was also told that the wife of the Appellant was pregnant.

The sentences

11.  In sentencing, the Magistrate had taken into account the content of a DATC report.  It was opined that the Appellant was drug dependent.  However, further admission to DATC was not recommended.  The reasons were clear.  The Appellant had been admitted on four previous occasions.  He had a long history of drug addiction and is a person with deep-rooted involvement in criminal activities.

12.  In relation to the case ESCC2950/2011, the Magistrate adopted a starting point of 12 months, having taken into account that the quantity of the drugs found was relatively small but two types of dangerous drug were found, and the previous record of the Appellant.

13.  In relation to the other case, the Magistrate proceeded on the basis that the heroin was in the possession of the Appellant when he was arrested earlier for the ESCC case.  He noted that the clothing was taken from him on his admission to the Lai Chi Kok Reception Centre and the heroin had not been discovered until 8 days later because it was well hidden inside the zip of the trousers.  The Magistrate has had regard to cases such as Attorney General v Au Kwok Chai CAAR 22/1995, HKSAR v Chan Ping Chi HCMA769/1999 and HKSAR v Lam Hon Kwong HCMA291/2001.  He adopted a starting point of 18 months.

14.  A discount of 1/3 was given for each sentence for the guilty plea.

Grounds of Appeal

15.  The sole ground of appeal is that the sentences are too severe.

16.  As regards the sentence imposed in ESCC2950/2011, the Appellant submitted that the Magistrate had wrongly followed the case of HKSAR v Mok Cho Tik [2001] 1 HKC 261, for the following reasons :

1.  That case has no application for sentencing in the Magistrates’ Courts.  When Stock JA (as he then was) delivered the judgment for the Court of Appeal, he said :

“… We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). …”

2.  The quantity of dangerous drug involved in that case was higher, it was 15.724 grammes of methamphetamine hydrochloride.

17.  As regards the sentence imposed in KCCC3015/2011, since it was just a case of his neglecting to inform the authority of his possession of the dangerous drug, no additional sentence should have been imposed.  It was wrong to order the sentences to run consecutively.

Discussion

18.  In the circumstances of the case, in particular having regard to the previous unsuccessful treatment which the Appellant had undergone in DATC, and in the light of the information and recommendation contained in the DATC report, it was entirely appropriate for the Magistrate not to send the Appellant again to DATC for treatment.  In my judgment, imprisonment term is the only appropriate sentence to impose.

19.  As far as the case ESCC2950/2011 is concerned, despite the relatively small quantity of the drugs found, in the light of the fact that two types of drug were found and the previous records of the Appellant, in no way can the 12 months starting point adopted by the Magistrate be said to be wrong in principle or manifestly excessive.

20.  I have no doubt that the Magistrate was entitled to have regard to what was said in HKSAR v Mok Cho Tik.  In any case, the sentence imposed is consistent with other relevant sentencing precedents, such as HKSAR v Lai Siu Ming HCMA238/1999.

21.  As regards the other case, whilst I note that the clothes which the Appellant was wearing were taken away from him on his admission to the Reception Centre, having regard to the decision of the Court of Final Appeal in Tam Wa Lun v HKSAR FAMC56/2010, I consider it proper for the Magistrate to take into account that the Appellant kept in secret possession of the drug concealed in the zip of his trousers when he was taken into custody.  

22.  It is obvious that the Magistrate rejected the assertion of the Appellant that it was just a case of forgetting or neglecting to inform the authority of the existence of the dangerous drug.  In all the circumstances I am of the view that this is a conclusion the Magistrate was entitled to reach.

23.  As the late Mackintosh J said in HKSAR v Chung Lam HCMA889/2009, “… the taking of dangerous drugs into a correctional institution should be regarded as a very serious aggravation of the offence of possession of a dangerous drug.  … … It is essential for the good order of prisons that those who are committed to such institutions do not seek to smuggle in dangerous drugs; and it is essential that those who may consider smuggling drugs into prison be deterred.  That is why heavy sentences are generally imposed, … …”

24.  The 18 months starting point adopted by the Magistrate is not out of line with previous decisions and I see no reason to disturb it.

25.  It is also proper for the Magistrate to order the two sentences to run partly consecutively to each other.  As Wright J said in HKSAR v Lo Wai Fai HCMA123/2010, it is to recognize “the individual nature of the two offences as well as providing some deterrence against taking drugs into custody.”

26.  In my judgment, the overall sentence of 14 months is neither wrong in principle nor manifestly excessive.

27.  I therefore dismiss the appeal.