HKSAR v. WONG YUEN CHOI

HCMA 248/2006 & HCMA 249/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 248 & 249 OF 2006

(ON APPEAL FROM KTCC 8497/2005 & 655/2006)

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J U D G M E N T

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1.  The Appellant was convicted in each of these cases on his own plea of one charge of ‘Injecting a Dangerous Drug (midazolam)’.  He was sentenced by the same Magistrate to 6 months’ imprisonment in each case; the sentences were ordered to run concurrently.

2.  The offences occurred when the Appellant was an in-patient of Caritas Medical Centre.  On 7 September 2005, a nurse found him in his bed, holding a syringe with the needle inserted into his hand.  Analysis showed that the syringe contained midazolam.

3.  In the second case, he was found sitting on his bed holding a syringe.  Again the syringe contained traces of midazolam.  This offence occurred on 28 January 2006.

4.  The basic ground of appeal was that sentences of 6 months’ imprisonment were manifestly excessive.  The Magistrate obtained a DATC report before sentence, which showed that the Appellant was not suitable for DATC in view of his poor health and because he had been there five times before.  He was assessed as being drug dependant.

5.  The Magistrate was asked to consider imposing a prison sentence and then suspend it, but was disinclined to do so.  He found references by the Appellant to mitigation because of his “old age” unconvincing as the Appellant was only 51.

6.  The Magistrate said that he did not sentence the Appellant on his record, but did take into account his numerous drug-related offences, which showed that he had been a drug addict for many years.  He noted that the drug involved was not heroin, which would merit a longer sentence.  He took into account the Appellant’s present poor state of health and adopted an overall starting point of 9 months’ imprisonment, in each case.  He allowed a discount of 1/3 for the plea of guilty and sentenced the Appellant to 6 months’ imprisonment on each charge, to be served concurrently.

7.  The Appellant did not try to say that he does not deserve imprisonment.  He said that he never felt before that sentences imposed previously had been unfair, implying he felt these were.  He represented himself on the appeal and by a letter appraised the court of his long, sad life and his poor health.  The Appellant was an amputee having had his leg amputated in 1999.  It was for that reason he was in hospital at the date of these offences.  He was lonely as his family had emigrated overseas.  He was in excruciating pain and did not want to die in prison.  He claimed that he used the midazolam to kill pain, and that later he had been given morphine by the doctor.  There is no explanation as to how he managed to obtain the midazolam.

8.  Although one feels a great deal sympathy for the Appellant in his poor state of health and hapless circumstances, there is nothing to show the Magistrate was incorrect in adopting the stance he took on sentence.

9.  Both offences involved illicit, overt, drug consumption in a public hospital.  The Appellant had 29 previous convictions, 19 were drug related and the offence in HCMA 249 of 2006 was committed while he was on police bail for HCMA 248 of 2006.  These factors justified an increased starting point.  The Magistrate did not adopt an excessive overall starting point.  He gave full credit for the guilty pleas and taking account of totality, he ordered the sentences to run concurrently.  There is no basis on which I should disturb the sentences and both the appeals against sentence are dismissed.