R. v. LAM WAI PING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.239 and 240 OF 1997

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J U D G M E N T

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1. There are two appeals before me. In Magistracy Appeal No.239 of 1997, the appellant appeals against conviction. In Magistracy Appeal No.240 of 1997, he appeals against sentence.

2. In the first case he was convicted after trial of injecting a dangerous drug. The facts were that on 13^th November 1996 in the early hours of the morning, two police officers were on patrol duty in the Shaukeiwan area. Inside a male public toilet they saw the appellant in one of the cubicles injecting a dangerous drug. The officers arrested him and seized a plastic straw, a syringe and a package. The officers said that the appellant verbally admitted the offence under caution.

3. At the trial, the appellant gave evidence. He said that he lived nearby and had just finished using the toilet and that when he was coming out of one of the cubicles, the officers stopped him. They did not find anything on him but found a straw and a syringe on the window sill in the toilet. During the course of the trial, it was pointed out to the learned magistrate that in his police statement, the officer said that the appellant was injecting a dangerous drug into his right thigh whereas in evidence, he mentioned that it was the left thigh. The officer admitted that he might have made a mistake and got it wrong. The learned magistrate accepted his explanation and found him to be an honest witness. He was satisfied beyond reasonable doubt that the appellant was guilty of the offence.

4. Before me, the appellant made the same points. He said that the officer was dishonest. He had mentioned a package while he was giving evidence but that was not mentioned in his statement.

5. I think the learned magistrate was entitled to come to the conclusion he did having heard the evidence from the officers and the appellant, and having had the opportunity of assessing their evidence.

6. There is nothing in what the appellant had said which can persuade me that the conclusion reached by the magistrate was incorrect, or that the conviction was in any way unsafe or unsatisfactory. The appeal against conviction in M.A.239/1997 is dismissed.

7. In the second case, the appellant pleaded guilty to one count of possession of a dangerous drug. The drug involved was one plastic straw packet containing 0.18 gramme of a mixture containing 0.17 gramme of heroin hydrochloride. He was sentenced to 9 months imprisonment. He now complains that people having a greater quantity of dangerous drugs had received a lighter sentence than he did.

8. The facts were also relatively simple. The appellant was found in a public toilet in the Shaukeiwan area. He was then holding the dangerous drugs and upon arrest he admitted that he had the drugs for his own consumption. The appellant is now 45 years of age. He was described by his lawyer as a musician playing the Erhu. By his earnings of $2,000 per month he supported himself and his parents in China.

9. He has an appalling criminal record. Of course, he should not be punished again for his record, but his criminal record is clearly relevant to the discount he is entitled to receive and whether there are other ways of dealing with him. He had 28 previous convictions - 12 were drug related, 11 were for theft or burglary and the rest for loitering. There were four other drug offences for which no conviction was recorded. It is quite clear that he is a long time drug addict. He had received treatments in Drug Addiction Treatment Centre on four previous occasions, but unfortunately he relapsed to the habit again. He had been to prison on many occasions and this time the D.A.T.C. report said that he was not suitable to receive such treatment again.

10. The learned magistrate had reviewed previous authorities and adopted the starting point of 12 months. He took into consideration that it was a plea not on the first occasion but on the day of the trial and bearing in mind all the circumstances, he reduced it to 9 months, i.e. a 25% discount.

11. I do not think the decision can be faulted. The learned magistrate applied the correct tariff and had given sufficient consideration to his plea. It is right to say that the appellant is not entitled to the usual one third discount. I am in no way satisfied that the sentence is manifestly excessive or wrong in principle. The appeal against sentence is also dismissed.