HKSAR v. FONG HOI WAH

HCMA483/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.483 OF 2003

(ON APPEAL FROM TWCC NO.350 OF 2003)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The 52-year-old appellant pleaded guilty to an offence of possession of 10 tablets containing a total 39 milligrammes of methadone. The facts are straightforward. The appellant was seen entering his premises with another person by police. They were intercepted. The premises was searched and the 10 pills of methadone were found in a desk drawer in the living room. The appellant admitted the drugs were for his own consumption.

3. The magistrate sentenced him to eight months' imprisonment in respect of the offence after having taken a starting point of 12 months' imprisonment and discounting it on the basis of the appellant's plea.

4. That starting point was at the upper end of the range of sentences for offences of possession of small quantities of methadone.

5. A prison sentence was inevitable in this case. The appellant was not suitable for detention in a Drug Addiction Treatment Centre or for probation given his criminal record. He has been a drug addict since 1968 and had spent the larger part of his life in prison or custody for small scale drug related offences.

6. While it seems to me the magistrate's reasoning in imposing a sentence of eight months' imprisonment cannot be criticized, nevertheless the appellant has, according to his record, stayed out of trouble since 1997, that is an unusually long period for him given his record displays a history of multiple convictions each year. He says he is a diabetic now and has been on methadone over that period. That is, in fact, the drug he is charged with, so perhaps there is some support for his assertions in that regard.

7. I accept the appellant is ill and I accept he is at risk of losing his flat. By themselves those two matters would not really have any significance affecting mitigation, but I am prepared perhaps over-generously to give him some credit for that period in which he has remained out of trouble.

8. Accordingly I reduce his present sentence of eight months' imprisonment to a sentence of six months' imprisonment.