HKSAR v. IP KA LOK

HCMA 82/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 82 OF 2004

(ON APPEAL FROM KCCC 17715/2003)

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J U D G M E N T

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1. The Appellant was convicted on his own plea of one charge of possession of a dangerous drug. It was a packet containing 0.31 grammes of a mixture containing heroin hydrochloride.

2. The facts are very simple. He was seen walking in San Po Kong and the police officers considered him suspicious and intercepted him. Upon a search, a packet of dangerous drugs was found in the Defendant's right palm. The Appellant was sentenced to 8 months' imprisonment and he now appeals against that sentence.

3. The learned Magistrate, when sentencing the Appellant, had called for a Drug Addition Treatment Centre Report and had observed that the Appellant had been given, on previous occasions, for possession of drugs nearly every form of sentence available. He had been put under probation, sent to the DATC and prison and therefore, the Appellant was found not suitable for Drug Addition Treatment Centre on this occasion.

4. The Appellant who is in his 50's has got some 26 previous convictions and a large part is to do with drug. His last conviction before this offence was in 2002 for possession of dangerous drugs for which he was given six months but three months of which was to be concurrent to his previous offence of another possession of dangerous drugs offence. So it can be said that the Appellant is a recidivist, so the learned Magistrate would have been entitled to adopt a higher starting point when sentencing the Appellant, but he did not do so, and gave the Appellant a sentence with a 12-month starting point.

5. The Appellant's appeal is based on the fact that on previous occasions when he was found in possession of more dangerous drugs, he was sentenced to 8 months' imprisonment after trial and he said, therefore, that in comparison to his present offence when he was only in possession of one packet this sentence is manifestly excessive.

6. Having considered the circumstances, the learned Magistrate had in fact arrived at the sentence which he thought was reasonable in the circumstances. Apart from the plea of guilty, there was no other mitigating factors in this case, as I have said the learned Magistrate was treating the Defendant quite leniently when he chose not to aggravate the sentence because of the record of the Appellant.

7. Having considered the sentence and the circumstances, I do not consider that it was a sentence that was manifestly excessive or wrong in principle and therefore the appeal is dismissed.