HKSAR v. CHAN SAI HAP

HCMA 1274/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1274 OF 2004

(ON APPEAL FROM NKCC 8226/2004)

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HCMA 1275/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1275 OF 2004

(ON APPEAL FROM TWCC 1788/2004)

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BETWEEN

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J U D G M E N T

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1.  On 3 December 2004 this Defendant was sentenced to a period of 12 months imprisonment by Mr John Glass at Tsuen Wan Magistrates’ Court for two offences of being in possession of ‘ice’, as it is popularly known.  He now appeals against those sentences on the ground that when taken in combination they are manifestly excessive in all the circumstances.

2.  A brief chronology may be helpful.

3.  On 22 April 2004, the Defendant was arrested and found to be in possession of 0.75 grams of a crystalline solid containing 0.72 grams of methamphetamine hydrochloride (“ice”).  He was charged on 1 June 2004 and bailed to appear at Tsuen Wan on 7 June 2004 when he pleaded not guilty and was remanded on bail to the 20 August 2004 for trial.  On that occasion, he pleaded guilty and was remanded for a probation report and a urine test.  That remand was on bail.  I suspect what influenced the learned Magistrate to take that course was the fact that this was the first drugs offence committed by the Defendant.

4.  His record shows that he has committed a number of offences going back to 1985 in relation to offences of dishonesty, mostly relating to his use of motor vehicles.  There are offences of taking a motor vehicle without authority – theft from a motor vehicle and there is an offence of criminal damage.  He has been variously fined, placed on community service and he has also been sentenced to a short period of imprisonment in the past.

5.  He failed his urine test and whilst he was on bail, he committed the second offence for which he was arrested on 15 October 2004.  On that occasion, he was found to be in possession 2.83 grams of ice.

6.  On 19 November 2004, he re-appeared before Mr Glass who, having regard to the fact that he had failed his urine test and had also been told of his arrest on 15 October 2004, remanded him in custody for a Drug Addiction Treatment Centre (DATC) report.  That remand was to 3 December 2004, when both matters were before the learned Magistrate.  The DATC report showed that he was not a drug addict and therefore not suitable for treatment at the DATC.  He was sentenced in the following way.  In respect to the first offence, the learned Magistrate took a starting point of 6 months and reduced that to 4 months having regard to his plea of guilty.  In respect of the second offence, a starting point of 12 months was adopted by the learned Magistrate having regard to the fact that this offence was committed whilst he was on bail for the first.  That sentence was reduced to one of 8 months to reflect his plea of guilty and the Magistrate took the view that the sentences should be served consecutively resulting in a total of 12 months.

7.  Mr Kelly, who appears for the Defendant in this appeal, and who had argued the matter with great restraint and therefore very persuasively, submits that the second sentence in particular was too long and made worse by the fact with the Magistrate ordered it to run wholly consecutively to the first sentence.  The case of HKSAR v. Mok Cho Tik, a decision of the Court of Appeal, shows that for simple possession of ice, the appropriate starting point should be between 12 to 18 months.  Although this is not an immutable guideline, it is obviously a guideline which is not to be departed from lightly.  The principal consideration in determining the starting point would appear to be the amount of drug involved, and in this regard, Mr Kelly draws attention to the fact that in respect of both of these offences the quantity involved is very much at the lower end of the scale.

8.  The difficulty faced by the Defendant here is the fact that he committed the second offence whilst on bail for the first.

9.  The Magistrate considered this to be an aggravating feature and I think that he was right in coming to that view.

10.  No possible criticism can attach to the sentence of 4 months on the first offence which could be said to be generous.

11.  On the second the starting point of 12 months cannot in my judgment be properly criticised either.  It falls within the Mok Cho Tik guideline and it cannot in my view be characterised as wrong in principle or manifestly excessive.

12.  The appeal has really narrowed itself down to whether, as a total, 12 months can be said to be wrong.  Mr Kelly submits that the Magistrate ought to have ordered a partly consecutive sentence on the second offence, to produce a total more in the order of 8 months rather than the 12 months that was actually imposed and in this regard he points to the fact that the quantities here are, as I already observed, at the lower end of the scale and that these were the first drug offences committed by this Defendant.

13.  For my part, I do not think that one can fault these sentences either individually or as a total.

14.  The Defendant was always liable to face a prison sentence once he was found unsuitable for probation where he failed his first urine test.  Thereafter matters went seriously downhill for him when he committed the second offence whilst on bail for the first.  He was not suitable for a sentence in the DATC.  A prison sentence was therefore inevitable and in this matter it cannot be said these sentences were either wrong in principle or manifestly excessive with the result of this appeal must be dismissed.