HKSAR v. CHOW TAK WING

HCMA484/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 484 OF 2012

(ON APPEAL FROM ESCC 837 OF 2012)

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REASONS FOR JUDGMENT

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1.  The appellant was charged with one count of “Trafficking in Dangerous Drugs”. He pleaded guilty and admitted the facts. The drugs involved was 2.19 grammes of heroin.

2.  According to the admitted facts, what had transpired was that:

(i)      On the day in question, the police mounted an anti dangerous drug operation in the vicinity of the Violet Peel Methadone Clinic.  At around 1500 hours, the police officer saw a man gave some money to the appellant, and in turn he received a packet from the appellant.  The police then arrested both the appellant and the man.  The packet, suspected to be heroin, was seized.

(ii)     Over the next three days whilst in custody, the appellant excreted a total of 18 packets of heroin.  Under caution, the appellant said he was frightened and swallowed the packets of heroin when he noticed the approach of the police.

3.  In considering the sentence, the magistrate said he would adopt 2½ years as the starting point for this amount of drugs.  However, as the trafficking had taken place outside a methadone clinic and the appellant already had one similar conviction of trafficking, he considered it appropriate to raise the starting point to 3 years.  After granting the one-third discount, the magistrate imposed the term of 2 years.

4.  The appellant was unrepresented at the appeal hearing.  He stated that he felt the sentence was too severe.  He recalled that his lawyer had advised him that he might get 2½ years as starting point. He further complained that on his second appearances, the duty lawyer did not say anything on his behalf.  The appellant also mentioned that he came to know that some defendants were given more lenient sentences in similar circumstances.

5.  The appellant should realize that the ultimate sentence imposed by the court would not necessary be the same as advised by his lawyer.  It was also not useful to compare sentences between individual cases. Further, I noted that in the present case, the magistrate had adjourned the sentence after hearing mitigation as he required some time to consider the appropriate starting point.  The other duty lawyer who appeared for the appellant after the 7 days adjournment was basically there to take the sentence of the court.  Of course, he would assist the court if so required, but he was not there to repeat the mitigation.  Hence the criticism against the second duty lawyer was unjustified.

6.  The appellant had a total of 10 previous convictions. The record showed that the former offences were mostly drug related and the appellant had been given chances for drug rehabilitation.  In 2010, the appellant was sentenced to 12 months for a case of trafficking of drugs.

7.  As the magistrate rightly pointed out, for the sale of even one packet of heroin (0.7 grammes) outside the methadone clinic, a starting point of not less than 2½ years was justified.  (See HKSAR v Ng Kwok Fai, HCMA726/2011)

8.  With the appellant’s background and for such quantity (packets and amount) of heroin, I had to agree with the respondent’s submission that 2 years’ imprisonment after plea was neither excessive nor wrong in principle.

9.  I had dismissed the appeal as there was no merits in any of the grounds.