THE QUEEN v. CHAN YU-CHOI

IN THE SUPREME COURT OF HONG KONG

( APPELLATE JURISDICTION )

MAGISTRACY APPEAL NO. 674. OF 1989

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BETWEEN

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J U D G M E N T

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1. This is an appeal against sentence for possession of apparatus fit and intended for injection of a dangerous drug. The appellant pleaded guilty and was sentenced to 9 months' imprisonment.

2. The learned magistrate in her Reasons for Sentence said that the average sentence for this type of offence, without any aggravating features, was in the range of six to nine months. This is not so.

3. In The Queen v WONG Wing-tak (1988) HKLR at page 311, the Court of Appeal said that, among other things, they were dealing with an appellant who had a very long list of previous convictions, many of them for drug related offences. They went on to say:

'' We have obtained statistics from the North Kowloon Magistrates Court showing that the sentences for possession of apparatus intended for use in taking drugs is usually short of immediate imprisonment, and that when such a sentence is passed it is considerably less than the one in this case, the average being about 3 months. For those reasons, we think that the sentence passed was wrong in principle in that, although the maximum for the offence is 3 years' imprisonment, substantial sentences should only be passed for possession of apparatus in quantities or other circumstances which indicate more than possession for the defendant's own use.

4. There is nothing in the agreed facts to show that the appellant was in possession of apparatus other than a syringe and a spoon or that what he did have was other than for his own use.

5. I have been assisted in this case by having before me the sentencing statistics passed for this offence in the last 6 months in three magistracies.

6. In North Kowloon Magistracy, 20 defendants were fined, 3 were given 1 month or less, 2 were given 2 months, 6 were given 3 months, 2 were given 4 months and 5 received 6 months.

7. In San Po Kong Magistracy, 17 were fined, 1 received 1 month or less, 2 received 2 months, 1 received 4 months, 3 received 6 months and 1 received 9 months which is the subject of this appeal.

8. In Central Magistracy, 14 were fined, 6 received 1 month or less, 2 received 2 months, 1 received 3 months and 1 received 9 months.

9. The sentence of 9 months is wrong in principle and manifestly excessive.

10. I allow the appeal, set aside the sentence and substitute therefore, a sentence which will lead to the immediate release of the appellant, who has already been in custody for three months.