HKSAR v. CHEUNG HOI LAN

HCMA 93/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 93 OF 2003

(ON APPEAL FROM TMCC 2963/2002)

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J U D G M E N T

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1. This Appellant pleaded guilty in November 2002 to one charge of "Possession of Dangerous Drugs", the drug being 3 straw packets of heroin, the narcotic content being 0.09 grammes. A sentence of six months was imposed on her and the main ground of this appeal against that sentence was that it was too severe.

2. Appellant said today in court that although she had previous convictions she had kept out of trouble for a few years. She cited other cases where, according to her, people with similar offences had been given suspended sentences or fines. She said she had not taken drugs since her release in 1999 and through a social worker had sought treatment at the Castle Peak Hospital.

3. These were all matters known to the Magistrate. The Magistrate imposed sentence having considered both Probation and DATC reports. At the time of sentence, the Appellant was not considered drug dependent as she had been on a detoxification programme in Castle Peak hospital, while on remand. She was not considered a suitable candidate for probation.

4. The Appellant was aged 29 years; she had 7 criminal convictions; 6 for identical offences. In each of those cases, she had been sent to DATC. I am rather surprised at this sentencing persistence with DATC given the number of offences; clearly the DATC programme had not assisted her, a prison sentence usefully, could have been imposed earlier.

5. The Magistrate in sentencing took into account the case of R v So Ma Kwai [1993] 1 HKCLR 1, which considered the sentencing range for simple possession to be 6 to 9 months after a guilty plea and 9 to12 months for multiple offences. He also referred to the case of R v Lam Wai Ping, MA 239 of 1997 where for a minimal quantity a sentence of 8 to 12 months was found to be appropriate.

6. Here the Magistrate was unable to use either the Drug Addiction Treatment Centre or the Probation programmes. He took a starting point of 9 months imprisonment, and reduced it after giving the full 1/3 discount to 6 months. This is a proper sentence and this appeal is entirely without merit. I dismiss the appeal.