R. v. NGAN CHUN SANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.625 OF 1996

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J U D G M E N T

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1. The appellant pleaded guilty to one count of possession of dangerous drugs. He was stopped and searched by police officers in Tai Hang Tung Estate. In the search he was found to have a plastic bag in his pocket which contained 8.33 grammes of a mixture containing traces of heroin hydrochloride. He admitted to the police that he had that for his own consumption. The appellant was 40 years of age. He was a cleaning worker earning $5,000 per month. He was single and he said he had to pay rent and support his father. He had been a drug addict.

2. The learned Magistrate had mercy on him, put him on probation for 12 months on condition that he attended Shek Kwu Chau for the drug addiction treatment and that he be subjected to random urine test. Unfortunately after three months, he breached the order and picked up the habit again. He was therefore brought before the court. A DATC report was called for. Having heard him, the learned Magistrate imposed a sentence of 9 months instead and discharged the probation order. The Magistrate referred to the case of So Ma Kwai and Chiu Hung Wong, where the court adopted a starting point of 12 months and reduced it to 9 months upon a plea.

3. I have said in another case that the starting point should be from 9 to 15 months for possession and it depends on a number of factors including the quantities involved. In the present case, it is only traces of drugs that he possessed which were obviously for his own consumption. While I think the learned Magistrate was absolutely right in substituting a prison sentence instead of the probation order, I think the sentence of 9 months is on the high side. Bearing in mind that it was a jump from a probation order to imprisonment, in the circumstances, I would allow the appeal and reduce the sentence to 6 months.