HKSAR v. CHAN HUNG YAU

HCMA 183/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 183 OF 2002

(On appeal from WSCC 12724 of 2001)

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J U D G M E N T

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1. The appellant, Chan Hung-yau, was charged with two offences. The first was that of assaulting a police officer in the execution of his duty and the second was that of possession of a dangerous drug which was one packet containing 230 milligrams of a powder containing 13 milligrams of midazolam.

2. He appeared for trial at Western Magistrates Court on 15 January of 2002 before Mr M C Jenkins, Permanent Magistrate. He pleaded not guilty to the first charge, that of assaulting a police officer and was found guilty after trial. He pleaded guilty to the charge relating to the possession of the midazolam.

3. He was remanded in custody and the Magistrate ordered DATC reports. He was found by the intake officer to be unsuitable for treatment as he had been to a DATC, unsuccessfully, four times in the past.

4. On 29 January 2002, the Magistrate sentenced the appellant to serve 6 months' imprisonment on the 1st charge and 4 months' imprisonment on the 2nd charge, the sentences to be served consecutively, a total of 10 months' imprisonment.

5. This morning, the appellant has abandoned his appeal against conviction in respect of the assaulting a police officer charge and that has been dismissed. He is represented in respect of his appeal against sentence by Mr Newman Wong of counsel. Mr Wong submits on behalf of the appellant that the sentences, both individually and collectively, are manifestly excessive given the very small weight of drugs involved and the minor circumstances of the assault upon the police officer. Mr Wong also argues that the Magistrate failed to give the appellant a sufficient discount under the totality principle.

6. The facts are very simple. The applicant was seen by the police in the street, they suspected he had drugs on him. He was searched, the drugs were found, and in the course of the arrest procedure, when he was grabbed by the left hand by one of the police officers, he pushed the police officer away and the officer fell to the ground. The assault on the police officer, essentially, was no more than that.

7. There is certainly no doubt that assaults on police officers are serious offences and are ones that should always attract custodial sentences, save in exceptional circumstances. They should also attract sentences that are consecutive to the sentences passed in respect of any other offence that the accused is convicted of. As Miss Lily Wong, counsel for the respondent, reminds me in her written submission, this offence is an excepted offence.

8. However, I have to say that the circumstances of commission of this offence were one of the less serious examples I have seen. Quite frankly it amounted to little more than resisting the police officer in the execution of his duty rather than an assault upon that officer. I am of the view that the sentence passed after trial of 6 months' imprisonment for that offence was excessive, I allow his appeal against sentence in respect of that offence and reduce his sentence to one of 2 months' imprisonment.

9. In respect of the possession offence, the narcotic weight in the midazolam that the appellant possessed was very low - 13 milligrams. It has been held by this court that possession of up to 500 milligrams of midazolam attracts a sentence of no higher than 6 months' imprisonment.

10. I am fully aware that this accused is a drug addict. He has an extensive criminal record, including 7 offences for drug-related matters. Given his background, he cannot expect to receive a minimal sentence for his possession of dangerous drugs. However, I am of the view that the sentence of 4 months' imprisonment for possession of such a small quantity of active midazolam was excessive. I therefore allow his appeal against sentence in respect of that offence and reduce his sentence to one of 3 months' imprisonment.

11. The Magistrate was entirely correct to order that the two offences run consecutively and the sentence that I now impose are also to run consecutively. This means the appellant will now be imprisoned for a total period of 5 months.