HKSAR v. CHUNG YEE TAK

HCMA 1141 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1141 OF 1998

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J U D G M E N T

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1. This is an appeal against sentence by the appellant who pleaded guilty in the North Kowloon Magistracy to an offence of simple possession of 0.20 grams of heroin. He was sentenced to a term of 9 months' imprisonment, the learned Magistrate having adopted a starting point of 12 months' imprisonment and reducing it by 1/4 for what he described as the appellant's "belated" plea of guilty.

2. The appellant is aged 64 and has some 67 previous convictions (of which 33 were drug related) going back over the last 49 years.

3. The starting point in sentence is plainly correct and the appellant himself makes no complaint about it.

4. All that the appellant has said to me during the course of this appeal is that he has been in and out of prison since his childhood and on no occasion has he been 'given a chance'. That is not strictly true. He also tells me that in April and May of 1998 his health took a turn for the worse and whilst in prison because of his condition he is unable to take rice - but only congee. He says that because of his age nobody will now employ him and that he has no job security.

5. It is for these reasons that he asks me to reduce his sentence.

6. The only matter regarding sentence that has caused me some concern is the discount for plea of guilty given by the learned Magistrate. Whilst it is so that the appellant did not plead guilty at his first appearance in court the fact is that he was not legally represented at that time. On his subsequent appearance, and with the benefit of legal advice from the Duty Lawyer he promptly pleaded guilty.

7. In all the circumstances of this case, it seems to me that the appellant was entitled to the usual 1/3 discount for his plea and accordingly I allowed his appeal to that limited extent and I reduced his sentence from 9 months to one of 8 months' imprisonment.