R. v. MOK HING LAM

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.389 OF 1995

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1. In this case the appellant pleaded guilty to trafficking in dangerous drugs which consisted of two plastic straws containing 0.76 gramme of mixture with 0.39 gramme of heroin. He was sentenced to 2½ years' imprisonment. He now appeals against sentence.

2. The admitted facts showed that the appellant was seen to approach two officers who had posed as drug addicts and he touted them with dangerous drugs. He supplied the dangerous drugs in question to the officers for $280. He was arrested for trafficking. There was no other drugs found on him.

3. I must say I am rather concerned with some of the comments made by the magistrate in his Reasons for Sentence. It is of course correct to say that the appellant was not entitled to any leniency because of his previous record. The magistrate was also right in pointing out the prevalence of such kind of offences in the Tuen Mun area. Further, I think he was also entitled to say, from the circumstances of this case, that the appellant's plea of guilty is not evidence of remorse. However, some of his other comments are particularly worrying.

4. First, the magistrate referred to the appellant's failure to appear in court on a previous occasion and had to be re-arrested. With respect, I fail to see any reason for such a reference and its relevance. I think it is wrong to refer to this and I cannot help but wonder what effect this might have operated on the mind of the magistrate. Then the magistrate also said that he did not accept, as mitigation, that only a small quantity of drugs was involved. As a matter of fact, the only quantity for which the appellant was arrested was the two plastic straws which contained less than one gramme of mixture and less than half a gramme of narcotics. There is no evidence before the court of any other quantity. There is no evidence of any other activity before and after the appellant was arrested. So I do not understand how the magistrate could say that he was not satisfied that the case was only concerned with a small quantity. How this reference might have affected his mind is also unknown. I can only say that this comment was inaccurate and not supported by the evidence. It is trite law that a defendant can only be punished for what he is charged with and not what he might have done or possibly do. Thirdly, the magistrate referred to the appellant's wilfulness to sell heroin to others for profit and said he was "exacerbated by his initiating the deal". I fail to see why emphasis should be placed on this point. Afterall the appellant was charged with and pleaded guilty to trafficking and understandably there would be some "initiating" in trafficking. In the present case, the "potential" buyers were police officers and there was no question of any of the officers initiating the deal. Again, how such reference might have affected the mind of the magistrate is unknown. I can only regret that he seemed to have mentioned that with some emphasis.

5. At the end of the day, I am not sure that the magistrate had not taken some irrelevant matters into consideration. I cannot think of any valid reason for making reference to these irrelevant matters and on the face of it, one cannot help but think that they had or might have affected his discretion in passing sentence on the appellant.

6. Lastly, I notice that the magistrate did not give any starting point for his sentence or say how he arrived at this figure. He simply gave 2½ years. The maximum sentence which a magistrate can give on summary conviction in this type of offence is 3 years. The question then arises : did the magistrate give any discount for the appellant's plea or is this case one of the worst of its kind which are brought before a magistrate's court so that even after a plea he would have to give 2½ years ?

7. In my view, some discount should be given for a plea of guilty however late it comes. Further, the magistrate said that "the brief facts are unexceptional". It is therefore clear that in fact he accepted this as an ordinary case. I see nothing in this case to justify a sentence or starting point which is near the maximum.

8. Counsel for the Crown quite properly conceded that 2½ years is too high. From the cases referred to me by counsel, it seems that the appellate court had suggested that in circumstances which are similar to the present one, a sentence of 18 months after plea was the proper sentence.

9. In this case, I see no strong mitigating circumstances. On the other hand, there is no aggravating factor. Trafficking is of course a serious offence, but this is an ordinary case and the quantity involved was small. Taking two years as the starting point and bearing in mind his plea, I think a sentence of 18 months would be appropriate. In the circumstances, I think the sentence is manifestly excessive. I would allow the appeal. The sentence is reduced to 18 months.