HKSAR v. LEE KWOK HUNG

HCMA494/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 494 OF 2009

(ON APPEAL FROM ESCC 1580/2009 & 1000/2009)

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BETWEEN

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J U D G M E N T

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1.  This is an appeal against sentence. The appellant pleaded guilty to the possession of .1 of a gram of heroin. He was caught in a stop and search in January of this year. He was bailed.

2.  In March he stole a bar of Toblerone from a shop. Its value was $17. As a result of that he spent from 31 March until 23 June in custody. On the latter date he was granted bail in the High Court. In the meantime he was sentenced to 6 months’ imprisonment for the drugs offence and 1 month consecutively for the theft.

3.  The appellant has been a drug addict for nearly 40 years. He is suffering from lung cancer and tuberculosis. There was ample evidence that he was suffering from lung cancer before the magistrate. In addition to that evidence I have got an up to date letter from the Department of Clinical Oncology at the Queen Mary Hospital confirming the diagnosis and detailing the treatment by chemotherapy.

4.  Not surprisingly, the appellant has some previous convictions. There are seven appearances in all. As a young man he got himself into trouble managing an unlicensed massage establishment. Since 1986 there have only been three appearances: one for theft, for which he was sentenced to probation; two, for possession of dangerous drugs, one where he went to DATC and one where he was bound over.

5.  If the theft of the bar of Toblerone had stood by itself he would not have gone to prison. It simply was not serious enough. If I had thought it was part of a pattern of behaviour whereby he stole to sell in order to raise money to feed his drug addiction or if he had a whole series of shop thefts on his record imprisonment would have been justified. The fact that he was sentenced to 6 months for the drugs offence does not make the consecutive sentence of 1 month for the bar of Toblerone right, in my view.

6.  What about the sentence of 6 months? This is a re-hearing. I do not have to say the magistrate was wrong, but my view is different from his. I do not want to engage in a debate about what the right sentence is for men who have been drug addicts for approaching 40 years because the fact is quite clearly on the evidence before me and from what I see of the man in court before me now, that he is dying.

7.  He has not sought to make the most of the situation in an emotional plea to me. In fact at the beginning when asked what he wanted to say, he answered “nothing”. In answer to questions from me, I have adduced from him that his doctor told him, to quote him, “I’ve still got a few months left.” I cannot see the need for society to take some of those few months and put him in prison for the crimes he has committed against the background of that long-term drug addiction and the nature of his record that I have summarised.

8.  I emphasise I am not saying the magistrate is wrong. This is exactly the sort of case where two courts can have different views. I was going to reduce the sentence to an amount that he had already served, namely 2 months, allowing immediate release , but it is pointed out to me helpfully by counsel for the respondent that the time between the end of March and 23 June he was in custody in fact in relation to the theft matter. Whilst I suspect it would count towards a two month sentence for the drugs I do not want the appellant unnecessarily detained today. He is looking very frail.

9.  In those circumstances I shall impose conditional discharges on both of these matters.