HKSAR v. CHAN PING CHI

HCMA769/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 769 OF 1999

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J U D G M E N T

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1. The Appellant was charged with possession of dangerous drugs in that on 4 April 1999 at the Lai Chi Kok Reception Centre, Sham Shui Po, Kowloon, he had in his possession a dangerous drug, namely, one plastic straw packet of 0.29 gramme of a mixture containing 0.23 gramme of heroin hydrochloride. He pleaded guilty before the Magistrate, Mr Saunders, who sentenced him to 12 months' imprisonment.

2. In his Reasons for Sentence, the Magistrate pointed out that the Appellant had 14 previous convictions, six of which were drug related. The Magistrate relied on the case of AG v Au Kwok Chai, Application for Review No 22 of 1995 (8 May 1996, unreported), to state that it was clearly settled that a person taking drug into a custodial environment could expect an immediate custodial sentence. He also relied on that authority to hold that the proper sentence was one of 12 months' imprisonment after a plea of guilty. I have checked Au Kwok Chai : the facts involving the defendant in that case were closely similar to the present one. That defendant had a packet containing 0.06 gramme of heroin hydrochloride which he brought into the Lai Chi Kok Reception Centre because he had swallowed that packet before going to the Reception Centre. A prison warden examined his faeces three days after his admission and the drugs were found. He pleaded guilty. The Court of Appeal had this to say :

" The Attorney General submits that the sentence was manifestly inadequate and wrong in principle. He points out that the courts have always regarded the smuggling of dangerous drugs into prison as a serious offence. Indeed the magistrate himself appears to have taken that view. We agree."

And then it went on :

"... We bear in mind, as did the magistrate, that this was a very small amount of narcotics and was, it is accepted, for use by the respondent himself.

Having done so we are satisfied that the proper sentence would have been one of 12 months."

3. In the present case, the narcotic content of the drug possessed by the Appellant was 0.3 gramme of heroin hydrochloride. The circumstances were almost identical with those in Au Kwok Chai. The authority is binding not only on the Magistrate but also on me. I do not see how the Magistrate's Reasons for Sentence can be faulted. I therefore dismiss the appeal.