HKSAR v. LAM KWOK HUNG

HCMA905/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 905 OF 1999

(on appeal from KTCC 1454 of 1999)

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J U D G M E N T

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1. The appellant, LAM Kwok-hung, pleaded guilty to one charge of possession of heroin. The amount involved was 8.44 grammes of heroin hydrochloride, and he was sentenced to 18 months' imprisonment. He now appeals against that sentence, contending that it was wrong in principle and manifestly excessive. In her reasons for sentence the learned magistrate observed that:

"The drugs involved were quite substantial for personal use, and I could not ignore the fact that some of the drugs may have been used by others."

2. It is this passage that forms the basis of the first ground of appeal. It appears, it is said, that the learned magistrate is sentencing the appellant for the fact that some of the drugs may have been for trafficking. The learned magistrate did not indicate a starting point for the offence, although there are clear authorities that a judge, or a magistrate in sentencing a particular defendant, should always indicate the appropriate starting point for the offence for which the defendant is committed.

3. Mr CHAN, for the appellant, relied on a passage in the speech of Power, V.P., in R v LEE Sui-leung [1995] 2HKCLR at 248:

"While the judge was entitled to consider the latent risk factor, he was not entitled prior to so doing, to take the view that at the time of apprehension the applicant had some of the drugs in his possession for personal consumption and some for another purpose, i.e. some form of trafficking."

4. In the present case, the appellant pleaded guilty to a charge of simple possession. The judge could rightly enhance the sentence by taking into effect of the latent risk factor, but it appears that the learned magistrate had fallen into error by suggesting that he was sentencing the appellant for trafficking in some of the drugs.

5. I consider that there are genuine grievances in the appellant's case. The sentence imposed was wrong in principle and the appeal is allowed. The sentence is reduced to one of 12 months' imprisonment.