R. v. YU KAI SHING

1996, NO. MA 1333

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is an appeal from Mr Duggan, Acting Principal Magistrate. It is a very unusual case in that the appellant who has a number of convictions for drug offences went to court to plea guilty to a drug offence which also activated a suspended sentence.

2. He had 13 previous convictions and he was sentenced to 14 months' imprisonment. However, on his way to court apparently, he thought he would have one last final "fix" (if that is the correct word) of heroin. He took this and some of it was in a package. He was sentenced to prison and when he went off to the Lai Chi Kok Reception Centre, he was searched and in his pocket was found a small package with the most minute quantity, 0.08 grammes. One might have thought that in those circumstances the police would have confiscated it and nothing else would have happened. But for some unknown reason which I do not understand, he was then charged with being in possession of a dangerous drug. It was on any view a minute quantity and it was in his pocket which had probably fallen out. I am surprised they were able to weigh it.

3. The whole panoply of the law moved into action. He was brought back to court and charged. The magistrate heard it and referred to cases of dangerous drugs being taken into prison which of course is a serious offence. He was only in the remand centre when he was being searched, the magistrate thought that he should have another twelve months which he reduced, because of his plea, to another six months. So, this appellant found himself because of this grain of heroin in his pocket, getting another six months consecutive to the sentence that was passed. This was clearly wrong in principle.

4. The appeal is allowed and the sentence is reduced to one month's imprisonment concurrent.