HKSAR v. MA YIU CHUEN

HCMA884/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 884 OF 1999

----------------------

-----------------------

-------------------------

J U D G M E N T

-------------------------

1. The Appellant Ma Yiu Chuen was charged with possession of dangerous drug, namely heroin hydrochloride. The amount involved was 0.49 grammes. The Appellant pleaded guilty before the Principal Magistrate in North Kowloon Magistracy and received a sentence of 8 months. He now appeals against that sentence.

2. The learned Magistrate had stated very clearly in his Reasons for Sentence as to why he imposed a term of 8 months. He adopted a starting point of 12 months and reduced it to 8 in view of the plea. The Magistrate did not accept as mitigating factors the Appellant's age and his health condition.

3. The Appellant is now 70 odd years of age and has a heart condition. He is a recidivist having 31 previous convictions. The Drug Addiction Treatment Centre refused to admit him because of his health problem.

4. In conducting his own appeal, the Appellant now said that he wanted to go back to China to cure his addiction. In my experience, this kind of statements are often uttered before Magistrates in mitigation with little realistic attempt on the part of the Defendants to carry out after the sentencing process. I find no merits in this suggestion as a ground of appeal.

5. The Magistrate is entirely right in saying that if a person is of advanced age but is a recidivist, then age alone is not a mitigating factor. And usually ill health is not a matter for mitigation either.

6. While I do not query the approach of the Magistrate in determining the sentence, I take the view that further consideration could be given to the combined effect of the Appellant's advanced age and ill health.

7. In the circumstances, I am prepared to reduce the sentence to 5 months and this appeal is allowed to such an extent.