HKSAR v. CHU KAM WAH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 573
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant seeks leave to appeal against the sentences of 4 months and 2 years' imprisonment imposed upon him when he pleaded guilty to 2 counts of being in possession of a dangerous drug, contrary to Section 8 of the Dangerous Drugs Ordinance, Cap. 134. The narcotic content of heroin on the first count was 0.11 of a gramme and on the second was 16.41 grammes. It was ordered that the two sentences should be served concurrently.

2. One point arose on this application. That was the failure of the sentencing judge to call for a Drug Addiction Treatment Centre Report as is required by Section 54A of the Ordinance.

3. Failure to obtain such a report is fatal to the sentences which were imposed. At the previous hearing we treated the application as the appeal and quashed the sentences and ordered that a Drug Addiction Treatment Centre Report be obtained. This is now to hand. Perhaps unsurprisingly it is not recommended that the Applicant be admitted for treatment at a Drug Addiction Treatment Centre.

4. Accordingly we have to consider an appropriate sentence.

5. As indicated earlier the amount of dangerous drugs found in his possession was not inconsiderable. Had the Applicant being found guilty of trafficking in dangerous drugs, the proper sentence imposed would have been in excess of five years' imprisonment after trial.

6. However, the Applicant was not charged with trafficking in dangerous drugs. Notwithstanding this when such a large quantity of dangerous drugs is possessed by a defendant, it is incumbent on the sentencing judge to take cognisance of the latent risk of trafficking.

7. We consider that the sentences imposed of 4 months' imprisonment on the first count and 2 years' imprisonment on the second count which took into account the Applicant's guilty pleas were the correct sentences to impose. We also consider that the judge was right to order that the sentences should run concurrently. We order that these are to be the sentences imposed in this case.