HKSAR v. ANDREW ABEL PALMER

HCMA669/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 669 OF 2010

(ON APPEAL FROM TWCC 215 OF 2010)

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J U D G M E N T

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1.  The appellant pleaded guilty to a charge of possession of 0.9 gm of cannabis resin and the remaining contents of a smoked cigarette, also containing cannabis, contrary to section 8 of the Dangerous Drugs Ordinance, and was sentenced to one month’s imprisonment suspended for a period of 12 months.

2.  The appellant, now aged 28, has a number of previous convictions, mostly related to assault, with no previous conviction relating to the possession or use of dangerous drugs.  He lives on public assistance.  He suffers significantly from schizophrenia, according to the reports of Dr Lui and Dr Cheung, both visiting psychiatrists at Siu Lam Psychiatric Centre.

3.  The sentence imposed by the magistrate was, in the magistrate’s words, arrived at out of consideration for the state of the appellant’s health, and so as to give him “a serious warning” to stay away from all kinds of dangerous drugs.  The magistrate did not fine the appellant because he was financially unable to pay any fine at the time of sentence.  His financial situation in that regard continues today. 

4.  However I am concerned that the appellant, who suffers from the mental condition I have stated, is subjected to a period of suspension of sentence.  I accept that the appellant is unable to deal effectively with stress.  I am concerned that a suspension of sentence, particularly for a period of 12 months, is not as appropriate for him as it would be for a defendant not suffering from his condition.  For that reason, I propose to remove the term of suspension. 

5.  The appellant has been in custody pending his conviction for a period of nearly four weeks.  Given the circumstances of the appellant I propose to allow the appeal and substitute for his existing sentence a sentence of two weeks’ imprisonment.  That sentence having already been served in custody by the appellant he is now entitled to immediate release.