HKSAR v. SHEK SZE FAI

HCMA70/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 70 OF 1999

(On appeal from NKC 8814 of 1998)

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J U D G M E N T

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1. On 30 December 1998, the appellant having earlier pleaded guilty before J L Saunders Esquire, magistrate, to the offence of possession of a dangerous drug, namely .08 grammes of a mixture containing trace elements of heroin hydrochloride, he was sentenced to 8 months' imprisonment. He now appeals that sentence upon the general grounds it was too severe.

2. The prosecution's summary with which the appellant agreed, stated that he was the subject of a search by customs officers on anti-narcotic patrol who found him acting suspiciously. The drugs in question were in a packet clutched in the appellant's fist.

3. The magistrate called for a DATC report at first instance, which report rejected the appellant as a candidate for DATC, given that he had been twice before in 1985 and 1991, but that he had lapsed thereafter.

4. The magistrate adopted a starting point of 12 months and then reduced that by a third because of the plea. He found there was no other mitigating factor, and there was thus no further reduction from his starting point.

5. Before me, the appellant says he is a victim of his addiction and should have been treated more leniently. Moreover, he has a pregnant wife and family in China and wants to be released as soon as possible, so that he can look after them.

6. I accept that he is an addict, but that is no mitigation to the commission of what is a serious crime. It behoved him when the chance was available to take advantage of the benefits of DATC twice accorded him, to deal with that addiction, or otherwise pursue a course of voluntary treatment. Clearly he did not accept that chance. If he continues to offend, he will continue to face prison according to the recognised sentencing principles.

7. The magistrate's starting point for the offence of simple possession of heroin of 12 months is entirely consistent with current sentencing practice.

8. The appellant had a long history of previous offending and his early plea of guilty was the only appropriate additional matter to be taken into account. The sentence imposed was neither wrong in principle nor manifestly excessive.

9. The appeal is dismissed.