THE QUEEN v. TANG CHUNG-YAN

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H E A D N O T E

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SENTENCE FOR POSSESSION OF PART I POISON

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1441 OF 1989

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J U D G ME N T

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1. On the 14th October 1989, the appellant pleaded guilty before Mr D.M.B. Gill to a charge of being in possession of two tablets containing a Part I Poison.

2. The magistrate had before him the record of the appellant which showed him having been convicted of 25 previous offences, 17 of which were drug related. The maximum sentence to which the appellant could have been sentenced is $1,000.00 and twelve months imprisonment. The magistrate sentenced the appellant to six months imprisonment against which he now appeals.

3. The magistrate quite properly found the appellant to be a hard core addict with little hope of recovery. He considered that he was the type of offender who fell within the category of addict described by the Court of Appeal in the Attorney General v. Chan Tak King, Application for Review 1988 No. 21. That case involved two hard core addicts in possession of small quantities of heroin. The court found that the magistrate should have imposed immediate custodial sentences of six to nine months.

4. The present case does not involve heroin and is, as the magistrate acknowledges in his statement of findings, a less serious offence. He nevertheless, imposed the bottom end of the Chan Tak King tariff, namely, six months' imprisonment.

5. There seems to be very little authority on sentencing in respect of offences involving possession of Part I Poisons. The Attorney General v. Lee Chung-leung, Application for Review 1976 No. 21, involved a defendant in possession of 1 lb of Part I Poison, namely ephedrine, a stimulant. This was in 4 bags strapped to parts of the defendant's body. The Court of Appeal considered a sentence of nine months imprisonment to be proper but in the circumstances of the case, suspended it for 18 months. The court did, however, state that in a normal case involving possession of Part I Poison, an immediate custodial sentence would be proper.

6. Although the amount of drugs involved in this case is not a paramount consideration when considering sentence, it is nevertheless a factor which should be taken into account. The appellant had, as stated, only two tablets. When regard is had to this and to the substance involved, I am of the view that six months' imprisonment is excessive. I reach this conclusion conscious of the fact that the appellant is and was treated by the magistrate as a hard core addict. I, therefore, allow the appeal and substitute a term of two months' imprisonment.