HKSAR v. CHEUNG MING FAI

HCMA108/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.108 OF 2000

(On Appeal from SPCC7359 & 7426 OF 1999)

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J U D G M E N T

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1. The Appellant pleaded guilty to two charges of possession of a dangerous drug, namely, three tablets containing midazolam maleate. The first offence was committed on 2 November 1999 and the second was committed four days later, on 6 November 1999. He was sentenced by the Magistrate to a total of 10 months' imprisonment which was made out by his receiving five months' imprisonment on each charge, the sentences to be served consecutively.

2. The Magistrate had adopted a starting point of nine months' imprisonment in respect of each charge. From the authorities which have been quoted to me, it is clear that the starting point adopted by the Magistrate was far too high. In the first of those authorities, HKSAR v. Yiu Chi Wai HCMA624/1997, Lugar-Mawson DJ, as he then was, had heard full arguments on this particular offence, and after careful analysis of all matters, he decided that the starting point for up to 500 milligrams should be within six months' imprisonment. In the subsequent case of HKSAR v. Wong Tso Hsin HCMA967/1998, Gall J in December 1998 decided that the appropriate starting point should be four months' imprisonment. In HKSAR v. Tsang Man Hoi HCMA98/1999, Woo J in February 1999 was of the view that the proper starting point should be three months' imprisonment.

3. Mr Tam, appearing for the Respondent, agreed with the submission by Mr Hung, appearing for the Appellant, that the starting point of nine months' imprisonment adopted by the Magistrate was too high. The Appellant has been in custody since his arrest on 6 November 1999, which means that he has, taking into account remission for good conduct, effectively served a sentence of six months' imprisonment.

4. There are other grounds of appeal that Mr Hung has advanced namely that the Magistrate in his Reasons for Sentence had said that he imposed the sentence as he did, so that the Appellant might stay away from drugs and his undesirable peers for a sufficiently long period. Mr Hung had quoted the case of AG v. Chan Tak-king & anr. [1989] 2 HKLR 428, at p.436 : The Court of Appeal deprecated the practice of sending a drug addict defendant to a longer term of imprisonment than otherwise had been the case, just because of his addiction.

5. Finally, Mr Hung submitted that as a ground of appeal, that the totality principle had not been applied correctly by the Magistrate in making both sentences completely consecutive.

6. I do not really have to go into that. The upshot of everything is that this appeal has to be allowed, the sentences originally imposed by the Magistrate are quashed and substituted by sentences which would enable the Appellant to be released immediately.