HKSAR v. KWONG SIU WING

HCMA 618/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 618 OF 2001

(ON APPEAL FROM NKCC 2491/2001)

____________

____________

_______________

J U D G M E N T

_______________

1. This is an appeal against a sentence of 12 months' imprisonment imposed on the appellant by Mr Dufton sitting at North Kowloon Magistrate's Court on 30 May 2001 following the appellant's conviction on his own plea of possession of a packet containing 0.34 grams of a mixture containing heroin hydrochloride.

2. The packet containing drugs had been recovered from among the appellant's faeces on 11 April 2001 by Correctional Services Department while the appellant was being detained in an isolation cell at the hospital at Lai Chi Kok Detention Centre. Sixteen days earlier, on 26 March 2001, the appellant had been sentenced to one month's imprisonment at San Po Kong Magistrate's Court and a suspended sentence of one month's imprisonment had also been activated. The inference was overwhelming, indeed it has been admitted by the appellant this morning, that the packet had been swallowed by him before the sentence of imprisonment was imposed on 26 March 2001.

3. The appellant argues that the sentence imposed upon him was too severe. He said that he swallowed the drugs because he did not think he could cope with a term of imprisonment without those drugs, and he also said that his family in China are dependent on him.

4. The learned Magistrate had obtained a report as to the appellant's suitability for detention in a Drug Addiction Treatment Centre. Although the appellant was found to be a drug dependant, the reporting officer did not consider that he was suitable for such an order. It was said that he had no motivation to stay away from drugs. He himself indicated that he did not wish to be subject to such an order. He had been sent to Drug Addiction Treatment Centre on 3 previous occasions and each time relapsed into taking heroin shortly after his release.

5. The Magistrate then properly went on to consider a term of imprisonment. He bore in mind what had been said by the Court of Appeal in the Attorney General v. Au Kwok Chai AR 22 of 1995, and he observed that that case had been followed in two other cases to which he referred.

6. In the case of Au Kwok Chai, the quantity of drugs which the defendant in that case had ingested prior to his imprisonment was 0.42 gram of a mixture containing 0.06 gram of heroin hydrochloride, a quantity not dissimilar to the quantity of drugs in this case. The Court of Appeal bore in mind that a very small quantity of drugs was involved but stressed that smuggling drugs into prison, even if the quantity of drugs was very small and was for the prisoner's own use, was an offence which called for a deterrent sentence. In that case, after giving credit for the defendant's plea of guilty, the Court of Appeal substituted a sentence of 12 months' imprisonment for the one-month imposed by the Magistrate.

7. The learned Magistrate in this case was correct in taking into account Au Kwok Chai and the other cases to which he had referred.

8. I am satisfied that the starting point of 18 months' imprisonment adopted by the Magistrate was perfectly proper in the circumstances, even taking into account the mitigation that had been advanced to him and has been advanced before me today again, bearing in mind the need for deterrence in respect of this sort of offence. The one-third discount which he gave the appellant was the conventional one, which was quite proper in the circumstances.

9. I accordingly dismiss the appellant's appeal against sentence.