THE QUEEN v. WONG WING-TAK

1987, No. 615

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

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J U D G M E N T

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Penlington, J.:

1. The applicant faced two charges in the District Court, one of possession of a substantial quantity of dangerous drugs for the purpose of trafficking, on which charge he was acquitted and a second of possession of apparatus for injecting dangerous drugs which was found at the same time. This apparatus consisted of a spoon, a hypodermic syringe and a needle. On that charge he pleaded guilty ab initio and was sentenced by the trial judge to 15 months' imprisonment.

2. The trial judge helpfully said that he would have imposed a sentence of 18 months on a plea of not guilty. He took this as a starting point as the maximum sentence for the offence is one of 3 years imprisonment,

3. What quite clearly did play a substantial role in the sentence passed was the fact that the applicant has a very long list of previous convictions, many of them drug related. It has been said many times that while previous convictions are relevant to sentences in that the defendant cannot then put forward a clean record as a mitigating factor, they are not a reason for increasing a sentence, Wong Wai Hung V. R⁽¹⁾, Li Lam v. R.⁽²⁾, Chau Chi-man v. R.⁽³⁾

4. We have obtained statistics from the North Kowloon Magistrates Court showing that the sentences for possession: of apparatus intended for use in taking drugs is 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. For those reasons, 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. That is not the case here, the applicant having been acquitted on the trafficking charge. We grant the application for leave to appeal against sentence; treat this as the hearing of the appeal and the sentence will be reduced to one which will enable the immediate release of the applicant, who has already been in custody for four months.

(1) 1965 HKLR 629

(2) 1961 HKLR 404

(3) 1980 HKLR 703