THE QUEEN v. JORGE BERNARDO

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 29 December 1995 the appellant was found to be in possession of a mixture containing 12.95 grammes of the drug commonly known as "ice". He was later charged with trafficking in it but at trial on 18 September 1996 Judge Kilgour acquitted him of trafficking and found him guilty of simple possession under s. 8 of the Dangerous Drugs Ordinance (Cap. 134). He had always been prepared to plead guilty to possession.

The sentence

2. The judge took into account of the nature of the drug and the amount and sentenced him to 2 years imprisonment consecutive with a sentence of 6 months imprisonment which the appellant was then serving. That earlier sentence had been imposed on 8 July 1996. The judge sentenced the applicant to the 2 years imprisonment without calling for and considering a report from the Commissioner of Correctional Services of his suitability of cure and rehabilitation in relation to the drugs found upon him. It was recognised that he was at that time an addict and had been for some years.

3. The judge's power of sentence after conviction under s. 8 of the Dangerous Drugs Ordinance is as follows:

Turning to s. 54A, sub-s. (1) reads:

Sub-section (1A) does not apply to this case. Under s. 4, there is a definition of "non-custodial sentence" which includes a suspended sentence of imprisonment. Unusually, the provisions of ss. 8 and 54A read together provide not a procedural limitation upon the judge's powers but a substantive one with the result that the custodial sentence passed by the judge was not one permitted by law. It falls for this Court, therefore, to allow the appeal on sentence and quash it and now consider under s. 811 of the Criminal Procedure Ordinance what sentence we should pass instead.

4. This Court in accordance with the provisions to which we have referred called for a report which is now before the Court. That report demonstrates that this appellant has twice been to drug addiction treatment centres for compulsory treatment in the past. That produced no improvement in his behaviour. He committed crime - as the report says - continuously. That refers to his record which shows repeated minor offences of dishonesty - no doubt connected to his addition - and also relatively minor offences of possession of dangerous drugs. The report concludes that the appellant is not suitable for admission to a drug addiction centre because, having been in prison, he is no longer dependent upon drugs. No doubt he was addicted when he first went to prison.

5. It falls for this Court to consider that or what sentence ought to be passed for possession of this amount of 12.95 grammes of this drug known as "ice". We have been invited to consider the leading case of R v Ching Kwok-hung [1991]2 HKLR at 125. There, Silke V-P states at p. 128I:

"One-tenth of a gramme of ICE without reuse would be sufficient for three to four of what in the vernacular are called "hits". An ICE addict needs far less of the substance than does a heroin addict. ... Its effect lasts between 2 to 12 hours with the average being somewhere in the middle of that period."

There is other evidence that one gramme would result in about 10-15 "hits". What is quite clear is that there was in this amount of "ice" a substantial latent risk that it would fall into other hands. It was proper that the judge to take that into account in reaching his sentence of 2 years imprisonment at the end of the trial.

6. We have considered this matter afresh and have come to the conclusion that although the judge passed an unlawful sentence, his assessment of the length of sentence was one which was absolutely correct. In the circumstances we allow the appeal, we quash the sentence of 2 years imprisonment. We replace that sentence with a sentence of 2 years imprisonment consecutively with the sentence that he was then serving when Judge Kilgour passed the original sentence.