HKSAR v. LAI SIU MING

HCMA 238/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 238 OF 1999

(On appeal from SPCC 8264 of 1998)

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J U D G M E N T

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1. The Appellant pleaded guilty to an offence of possession of 0.15 grammes of heroin at San Po Kong court on 7 January 1999 and the magistrate sought a Drug Addiction Treatment Centre report prior to sentence.

2. On 21 January 1999 that report was produced to the court and not surprisingly perhaps in view of the criminal record and previous history of the Appellant which involved some 43 previous offences including some 10 being drug related and 5 previous unsuccessful DATC orders, the report was unfavourable.

3. The last of the DATC orders was imposed some 12 years earlier. Nevertheless in the opinion of the reporting officer, the Appellant was unsuitable for a further Drug Addiction Treatment Centre treatment.

4. The magistrate quite properly concluded then that the appropriate sentence was one of imprisonment. He relied on the judgment of Silke, V-P in the case R. v. CHOI Tung Cheung CA 39/1993, given after the amendment in penalty in respect of s. 8 of the Ordinance, who said:-

"It is now clear that the legislative temper is for very much stiffer penalties and the incarceration of those in possession of dangerous drugs for a much longer period than the earlier sentencing norm and the emphasis has moved away from the prior aim of rehabilitation, though the latter option is not removed."

5. The magistrate referred also in his Statement of Findings to two further cases R. v. LI Siu Man M.A. 248/96 and R. v. LAM Wai Ping M.A. 239 & 240/97 where the courts had approved starting points of sentence for the possession of small quantities of heroin as being 12 months after trial.

6. The magistrate quite properly in my view adopted 12 months as the appropriate starting point in this case and reduced that to 8 months imprisonment having regard to the only significant mitigating factor as being the Appellant's plea of guilty.

7. There is nothing in the magistrates reasoning or the level of sentence he imposed which can be criticised.

8. There is no merit in the appeal and it is dismissed.