R. v. LAW SING

1996, MA No.890

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H E A D N O T E

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Dangerous drugs - possession of apparatus fit and intended to be used - sentence.

The display of the paraphernalia of drug consumption in a public place or on a staircase of a block of flats to which members of the public and youngsters have access is an aggravating feature which warrants an upward adjustment to sentence, the more so if the circumstances demonstrate that the person in possession has just used those instruments in that place.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 890 OF 1996

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J U D G M E N T

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1. This is an appeal against a term of six months' imprisonment imposed by a magistrate for an offence of possession of apparatus fit and intended for the smoking of a dangerous drug.

2. The appellant was arrested as a result of a complaint by a member of the public. The appellant was found by the police to be kneeing down by a wall at a staircase and holding in one hand a piece of tinfoil, whilst a piece of paper was in, or held by, his mouth. Both the tinfoil and the paper were later found to have traces of heroin. On the ground there was found a tissue, a lighter, a cone and another piece of tinfoil.

3. The appellant is aged 62 and has an enormous string of previous convictions - in the order of 68, 40 of which are drug-related.

4. The magistrate said that the sentences for this type of offence ranged from three to six months, after a plea of guilty. In commenting about the difference in tariff between an offence of this nature and an offence of possession of a dangerous drug, he remarked that it would seem that the fact that a defendant was found after he had ingested the drug, resulted in a substantial reduction in tariff in other words, this appellant had, it would seem, just concluded his intake, and had he been found a little while earlier, the charge would have been different, and the sentence higher.

5. The magistrate also addressed the circumstances of the offence and said this :

" Even allowing full credit for his early plea of guilty, the circumstances of this offence (on a staircase to which the public has access and in an area which is one of the worst within the geographical area of this Magistracy for drug-related offences) and this offender seemed to me to merit a sentence of not less than six months imprisonment."

6. Mr Kwok for the appellant complains that the magistrate has erred in concluding a sentence of possession of apparatus fit and intended for smoking a dangerous drug was in the three to six months' range. It is, he says, acknowledged that the tariff is three months' imprisonment and accordingly he says the sentence was too high.

7. He relies first on the Court of Appeal's judgment in Wong Wing Tak C.A.615 of 1987, a case in which the appellant was sentenced to 15 months' imprisonment for possession of apparatus which consisted of a spoon, a syringe and a needle. The circumstances of the find are not revealed by the judgment. The court had statistics from North Kowloon Magistrate's Court that the sentences passed were :

"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."

8. In delivering the judgment of the court, Penlington, J. (as he then was) said this :

"... 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."

9. I do not take the court there to be saying that in cases where those particular aggravating features do not present themselves, anything in excess of three months is bound to be too high. About three months happen to be the average.

10. In Chan Yu Choi [1989]2 HKC 542 the appellant was sentenced to nine months' imprisonment, again for possession of a syringe and a spoon for his personal use. The appellant came before De Basto, J. He concluded, relying on the judgment of Wong Wing Tak [1988]2 HKLR 311, that the sentence of nine months' imprisonment was wrong in principle and manifestly excessive. He cited sentencing statistics which he had from three magistracies, where the sentences ranged from five to nine months' imprisonment, with the fines and sentences of up to three months predominating, but there were quite a few of six months.

11. In Choi Sin Yun M.A.34 of 1990, Ryan J held that six months' imprisonment was too high in a case of possession of a piece of tinfoil fit and intended for inhaling a dangerous drug. Again, there was nothing about the facts of the case that were revealed beyond what was implicit in the charge to which the appellant pleaded guilty.

12. It seems established that a sentence in the order of three months' imprisonment is the accepted tariff for cases of possession of instruments fit and intended to be used for the consumption of drugs. But I do not think that magistrates are shackled to that term come what may. Magistrates are entitled, indeed bound, to regard the circumstances of each case, and this magistrate was, in my judgment, quite right to take a more serious view of the matter because of the place and circumstances of the offence. In my judgment, the display of the paraphernalia of drug consumption in a public place or on the staircase of a block of flats to which members of the public and youngsters have access, and can be expected to go is an aggravating feature which warrants an upward adjustment to the sentence, the more so if the circumstances of possession demonstrate that the person in possession had just used those instruments in that place.

13. It is said by Mr Kwok that this appellant is a street-sleeper and that if I were to apply this aggravating feature in his case it would be penalising him for not having a home. That however is no comfort to those who see these activities in public places and to youngsters who may come across it. The court should in my judgment take a firm stand in this matter and although the sentence in this particular case was on the high side, it was not in my judgment manifestly excessive or wrong in principle and in the circumstances this appeal is dismissed.