R. v. TSE WAI MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.253 OF 1996

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J U D G M E N T

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1. The appellant was convicted on 31st January 1996 of one count of possession of a dangerous drug and one count of resisting a police officer in the execution of his duty. He had been arrested on 24th April 1995 in Cheung Sha Wan. At the time of the arrest, the appellant pushed away both police officers and fled. When he was finally caught, he was arrested and charged with possession of the drugs found in his possession which was a mixture of 56.22 grammes containing 17.62 grammes of heroin hydrochloride. Such a quantity of heroin is large and could merit a lengthy sentence.

2. The appellant is no stranger to the courts. He is clearly an addict and has a long history both involving drugs and other offences. I am mindful that the maximum sentence for possession of dangerous drugs, when the proceeding was summarily, is three years. I have considered fully the careful and reasoned approach to sentence adopted by the learned Magistrate. The first matter with which Mr Hung takes issue is that the starting point of three years was too high. I accept the Magistrate's comment that if the appellant had been tried for trafficking, the sentence could have been between five and eight years imprisonment after trial.

3. Whilst the appellant was carrying the mixture containing the drugs in a bag containing 2 packets divided almost equally, this does not take it out of the ambit of those cases where no accused is found with many packets of drugs. Here, whilst there was only 8 odd grammes in each that could have been repackaged to amount to a very high number of smaller packets, the fact of the manner in which it was packaged, in other words, does not detract from the seriousness of the large quantity of drugs and the protection which must be given to society from possession of that quantity with its attendant risk of part of the drugs at least falling into other hands.

4. Having considered all the learned Magistrate had to say and his careful analysis of the recent increase in sentencing for possession of heroin, I cannot say that he was wrong to start at three years and to give the one-third deduction for the plea of guilty to recognise that plea. I therefore order the sentence of two years imprisonment on the count of possession of dangerous drugs is appropriate and cannot be changed. Similarly, the sentence in respect of the charge of resisting arrest is entirely appropriate and on the totality principle, it is appropriate that it be concurrent to the count of possession of dangerous drugs, making a total of two years for the whole incident.

5. Mr Hung complains that the learned Magistrate did not take the totality principle into account when activating the suspended sentence.

6. It was clearly in his mind because immediately prior to his consideration of the activation of the suspended sentence, he had referred to the taking into account the totality of sentence. He saw no reason why it should not be implemented in full and neither do I. The appeal against sentence is dismissed.