HKSAR v. WONG SAI CHEUNG

HCMA 1342 & 1343/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NOS 1342 & 1343 OF 2000

(ON APPEAL FROM TMCC 3319 & 3235/2000)

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistracy to two charges of Possession of Dangerous Drugs. The first offence occurred on 7 October 2000 and involved 19 plastic straws and a straw packet where the heroin hydrochloride content was 4.31 grammes. The second offence occurred on 15 October 2000, at almost the identical place as the first charge. The quantity involved was 10 plastic straw packets and the narcotic content was 1.87 grammes of heroin hydrochloride.

2. The Magistrate sentenced the Appellant to 12 months imprisonment on the first charge, that is TMC 3235/00 and to 10 months in respect of TMC 3319/00. He ordered that 8 months of the sentence on the second charge should run consecutively to the sentence on the first, making a total sentence of imprisonment of 20 months.

3. The Appellant complained the sentences are too heavy and said that in a case tried immediately prior to his sentencing, 15 straws merited a 6-month sentence of imprisonment. He referred the court to Article 25 of the Basic Law, which states that all citizens are equal and asked the court to consider his case carefully and to give him a lesser sentence.

4. I should point out that it is the duty of a court to sentence on the basis of the facts and information relating to that particular case and that direct reference to apparently similar cases is not always helpful. The Magistrate in this case obtained, as he was bound to do, a report from the Drug Addiction Treatment Centre but in view of the Appellant's previous record and D.A.T.C. history, he was not accepted as a suitable candidate for a Drug Addiction Treatment Centre order.

5. The Magistrate referred to the case of R. v. Lam Wai-ping Magistrate Appeal 239-240/1997 where a sentence of 8 to 12 months was considered to be appropriate for a small quantity of heroin hydrochloride. He also referred to other cases which indicated that sentence was around 12 months imprisonment. The Magistrate took into account in each of Appellant's cases the quantity of narcotic involved. In 3235/00, he took a starting point of 18 months imprisonment, gave the Appellant full credit for his plea and reduced the sentence to 12 months imprisonment. In 3319/00, he recognised the lesser quantity, took a starting point of 15 months imprisonment and, after giving full credit for the plea of guilty, reduced that to 10 months imprisonment.

6. The Magistrate then considered the totality principle. He noted that the second offence was committed only 8 days after the first and at a time when the Appellant was on police bail for that offence. He ordered 8 months of the sentence on the second charge to run consecutively to the sentence in the first case.

7. I cannot fault the way the Magistrate dealt with sentence. The Appellant may feel aggrieved that he was not dealt with in the same fashion as the person in the case to which he referred this court, Yuen Chau Ming TMCC 3585/2000. However, every case is different, the circumstances of each offence is different and the previous criminal history of offenders often differs. All those are matters which might justify different sentences between different defendants, albeit they face similar charges.

8. Both appeals against sentence are dismissed.