HKSAR v. LAM MAN WAI

HCMA618/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.618 OF 2004

(ON APPEAL FROM ESCC 2243 OF 2004)

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J U D G M E N T

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Background

1. Mr Lam Man Wai pleaded guilty on 20 May 2004 in Eastern Magistracy before Mr D.I. Thomas to one charge of possession of a dangerous drug, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134 ("the Ordinance").

2. The "Particulars of Offence" averred that on 8 April 2004 on the roof top of No.10 Lee Tung Street in Wanchai, the appellant had in his possession 0.2 grammes of a powder containing 5 milligrammes of midazolam.

3. The facts accepted by the appellant and upon which he was convicted and sentenced were that he was found on that roof top holding a while plastic bottle in which was a broken tablet which on analysis proved to be a powder containing 5 milligrammes of midazolam. The appellant admitted that it was "nam ching ling" and that he had brought it in the vicinity of a nearby shop from an unknown person.

Personal circumstances

4. The appellant is a single male aged 41 years. He is possessed of a long criminal record stretching back to 1987. On no less than eight separate occasions he has been convicted of the offence of possession of dangerous drugs. In their attempts to deal with his offences, the courts have used a variety of penalties. To begin with fines, then short periods of imprisonment, even a suspended term of imprisonment. That last form of sentence failed because the appellant was in breach of it. In consequent of which it was necessary to activate the suspended term of imprisonment. The appellant was last dealt with in respect of the offence of possession of dangerous drugs on 10 November 2003. On that occasion he was sentenced to four months' imprisonment. It follows that the offence in respect of which he now appeals the sentence was committed within a few months of his release from prison.

Mitigation

5. Turning then to the mitigation that was advanced before the learned magistrate. The only mitigation of any substance was the fact of the appellant's admission of his culpability to the police followed by his plea of guilty.

Reasons for sentence

6. Turning next to the reasons given by the learned magistrate for the sentence which he imposed upon the appellant. As required by section 54A of the Ordinance the learned magistrate called for a report from the Commissioner of Correctional Services as to the appellant's suitability for treatment in a drug addiction treatment centre ("DATC"). The DATC report revealed that the appellant had abused heroin since 1983. He had been twice detained in a DATC in 1984 and 1985. However the appellant continued to abuse heroin. In 1999 in addition to abusing heroin he began to abuse midazolam. After his release from prison in January 2004, the appellant continued to abuse midazolam.

7. Notwithstanding the previous failures to wean the appellant off the abuse of dangerous drugs and the observation that he had "little motivation or confidence to get rid of his drug habit", the report went on to recommend "a period of compulsory drug addiction treatment coupled with intensive aftercare supervision would be beneficial to him", and identified the appellant as suitable for admission to a DATC.

8. It appears form the learned magistrate's Reasons for Sentence that in mitigation those appearing for the appellant in the magistracy submitted to the court that the appellant was not willing to cooperate with the Commissioner of Correctional Services in dealing with his drug abuse and dependency. Another relevant factor that the magistrate took into account was the fact that the appellant was serving a term of imprisonment for theft offences of which he had been convicted in May 2004 and in respect of which the earliest release date was 2 August 2004.

9. The learned magistrate concluded detention in a DATC was not appropriate and that an immediate custodial sentence was appropriate. The learned magistrate, in his Reasons for Sentence, has reviewed a number of authorities and has done so in some detail to demonstrate how it is that he arrived at the proper starting point. One of the cases to which he makes reference is R.v. Cheung Fook Lee (unreported), HCMA624/1996, in which appeal Stock J (as he then was) determined that the appropriate sentence for an appellant possessed of 53 milligrammes of midazolam following upon a plea of guilty, taking into account that the appellant was a multiple offender in respect of dangerous drugs and that he possessed the dangerous drugs in a detention centre, was six months' imprisonment.

Starting point

10. The learned magistrate took six months as the appropriate starting point and, after discounting the starting point by one-third, imposed a sentence of four months' imprisonment. Given that the offence for which he was imposed in sentence, namely possession of dangerous drugs without lawful authority, was quite different from the offence of theft for which the appellant was then serving a sentence of imprisonment, the learned magistrate ordered the sentence to be served consecutively to the sentence imposed in May 2004 of four months' imprisonment.

11. In determining the appropriate starting point, the learned magistrate took into account the fact that the appellant had an extensive criminal record in respect of offences of possession of dangerous drugs and that the offence was committed whilst the appellant was on bail.

12. The learned magistrate made specific reference to the judgment of the Court of Appeal delivered by Stuart-Moore VP in the case of HKSAR v. Chan Pui Chi [1999] 2 HKLRD 830 where the learned judge said at 833 :

"Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this Applicant's trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest."

Grounds of appeal against sentence

13. Turning next to the appellant's grounds of appeal, they merely asserted the sentence imposed upon him was too severe. In the course of this hearing the appellant has added to that stark ground of appeal by submitting that the starting point taken by the learned magistrate was too high, in particular because of the very small amount of the dangerous drug possessed.

14. I am satisfied that the approach of this very experienced magistrate to the issue of sentence, for the reasons that he has cogently identified, was entirely correct in the circumstances of this case. Your appeal against sentence is dismissed.