THE QUEEN v. CHOI SIN YUN

Mag. App. No. 34/90

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HEADNOTE

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POSSESSION OF APPARATUS FIT AND INTENDED FOR INHALING A DANGEROUS DRUG - SENTENCE REDUCED TO 3 MONTHS' IMPRISONMENT

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 34 of 1990

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JUDGMENT

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1. The defendant pleaded guilty to possession of a piece of tinfoil fit and intended for inhaling dangerous drug. He was sentenced to 6 months' imprisonment and now appeals against that sentence.

2. The appellant has a long list of drug related convictions and is described as a hopeless addict. The magistrate in imposing the term of imprisonment stated that 6 months was a well-established sentence for offences of this kind and relied upon the authorities of Magistracy Appeal Nos. 339/89, 402/89, 414/89 and 591/89. These decisions were all cases of possession of a dangerous drug. In two of the cases the amount of drug involved was minute. I have been referred to R. v. WONG Wing-tak (1988) HKLR 311 where the Court of Appeal found from statistics that the average sentence in the North-Kowloon Magistrates Court for offences of possession of apparatus was 3 months' imprisonment. The appellant in that case was also a hardcore addict. The sentence of 9 months was reduced to one of 4 months allowing the immediate release of that appellant.

3. The other case that the appellant relied upon is R. v. CHAN Yu-choi, Magistracy Appeal No. 674 of 1989 where Mr Justice de Basto after considering WONG Wing-tak and statistics which he had obtained from three magistracies, came to the view that the magistrate in that case had been wrong to state that 6 to 9 months was the range of sentence for offence of possession of apparatus fit and intended for injecting a dangerous drug. He reduced the term to one of 3 months' imprisonment. As was stated by the Court of Appeal of CHAN Tak-king, an Application for Review 21/1988, the fact that an offender is a drug addict does not justified a sentence which is out of proportion to the gravity of the offence he has committed.

4. Having regard to the authorities to which I have been referred by the appellant and to the degree of criminality involved in this case, I am satisfied that 6 months' imprisonment is excessive and is not a well-established sentence for an offence of this kind.

5. I therefore propose to allow the appeal to the extent that 3 months' imprisonment will be substituted for the sentence imposed.