HKSAR v. CHU TIM KEUNG

HCMA 286/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 286 OF 2001

(ON APPEAL FROM NKCC 7917/2000)

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J U D G M E N T

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1. The appellant in this matter was convicted on his own plea before the magistrate Mr Dufton on 21 March of this year of what is commonly called simple possession of dangerous drugs. He had in his possession a very small amount of mixture containing heroin.

2. The magistrate took into account the authority of Sau Ma Kwai [1993] 1 HKCLR at 92, where Silke VP, sitting as an additional judge of the High Court, accepted that the normal range of sentencing for those with a history of multiple offences of possession of drugs should be in the range of 9 to 12 months. It is not disputed that the appellant in this matter has many previous convictions; indeed, 25 in all, 13 of them relating to dangerous drugs. He has served terms of imprisonment for drugs and on two occasions has been sent to a drug addiction treatment centre. It is not disputed that he is therefore a multiple offender and falls into the bracket enunciated by Silke VP in the case to which I have just referred.

3. As a multiple offender, it was open to the magistrate to impose a starting sentence at the top of the bracket, namely, 12 months. This is what he did. I can see nothing wrong in principle in that, especially having regard to the many previous convictions of this appellant. The appellant complains that it was a long sentence. He says he has not complained in the past when he has received sentences, as he believed them to be just at the time. This, he says, is his first complaint.

4. I am satisfied, however, that, in all the circumstances, this was a just sentence even though it was longer than those previously imposed on this appellant. The appellant complains that he pleaded guilty and saved the court's time and should be given credit for that. He is correct. In fact, he was given credit; he was given the standard reduction which, in his instance, reduced the sentence from 12 months to one of 8 months' imprisonment. Effectively, therefore, on the drugs charge to which he pleaded guilty, this appellant received a sentence of 8 months, some 2 months longer than certain of the earlier sentences he had received.

5. Where perhaps the appellant is confused is that, in January of 1999, he was convicted of an offence of publishing an obscene article and was sentenced then to 4 months' imprisonment, suspended. The learned magistrate found it proper to activate that suspended sentence. Consequently, this appellant is today serving 12 months' imprisonment, not for one offence of simple possession of drugs, but for two offences: 8 months for the possession of drugs and 4 months for publishing an obscene article.

6. I can see nothing wrong in principle in the magistrate activating the suspended sentence and, as I have already said, I am satisfied that the sentence on the drugs was correct on the facts and in principle. In the circumstances, this appeal must be dismissed.