HKSAR v. CHENG WAI MAN

HCMA1212/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1212 of 1999

(On Appeal from FLCC 1966, 2005 & 2026 of 1999)

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J U D G M E N T

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1. On 16 November 1999 the appellant pleaded guilty before D L Duggan Esquire, Principal Magistrate, to three charges of possession of dangerous drugs. In each case these were packets of a mixture whose narcotic content was heroin ranging in size from .67 to 1.32 grammes. He was sentenced on each charge to 6 months' imprisonment to be served consecutively. He appeals those sentences on the grounds that they were too severe.

2. In each case the appellant was apprehended and searched by patrolling police officers and the drugs were found on his person. The offences were committed over a period of 11 days in August 1999.

3. The magistrate, as he was bound to do, called for a DATC report. The appellant was found not to be suitable for DATC; hardly surprising, given that he had 10 previous convictions, mostly drug related, and had been to DATC twice already, and has been abusing if not addicted to drugs for a period of some 20 years.

4. The magistrate regarded prison as the viable alternative. He regarded 12 months as being the starting point appropriate for single offences of this type which would, in the normal course, reduce to 8 months for a plea of guilty. But there were three offences overall and, on the basis of totality, he decided that the appropriate sentence was 6 months for each offence to be served consecutively. He made the point that although the overall narcotic content was small there was a latent risk, given the number of packets involved in each charge, that some of the drugs might have been destined for the market.

5. Before me the appellant complains that the magistrate wrongly fixed on a starting point of 12 months, that it was his belief that the appropriate sentence for an offence of this type is about 4 to 6 months. Further, given that the three offences were committed during a short passage of time the terms should run concurrently; in the alternative, that he was given insufficient discount for his pleas of guilty.

6. Let it be said first that the appellant pleaded guilty to serious crime, not in just one offence but three over a short period. The second and then third of the offences in time were committed whilst he was on bail for similar offending. This is not a matter that can be ignored or dealt with by way of the passing of concurrent sentences.

7. The magistrate, particularly having regard to the latent risk factor, was entitled to adopt a starting point for each offence of 12 months as he did. Having arrived at a sentence overall of 18 months' imprisonment, it is apparent that, working backwards, he regarded that the appropriate starting point overall was a sentence of 27 months. Having regard to the principle of totality, that approach cannot in any way be criticised.

8. The sentences imposed by the magistrate and his approach in arriving at the manner in which they should be served cannot be faulted.

9. The appeal is dismissed.