R. v. LI SIU MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 248 OF 1996

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J U D G M E N T

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1. The Appellant was convicted after a trial on the offence of possession of dangerous drugs and was sentenced to 15 months imprisonment. The amount involved was 4.31 grammes of a mixture containing 0.05 grammes of heroin hydrochloride.

2. The Appellant had a history of 25 previous convictions, 14 of which were drug related.

3. The magistrate in his reasons for sentence referred to R. v. Chiu Hung Wong and Anor Cri. App. 39 & 40/93 where the Court of Appeal was of the opinion that after the amendment of the Dangerous Drugs Ordinance in 1992, the previous normal sentence of 9 to 12 months imprisonment for simple possession was no longer appropriate.

4. Miss Mahomed for the Crown submitted that the quantity involved was very small, only 0.05 grammes of narcotic in a mixture of 4.31 grammes in two phials. She drew my attention to the case ofR. v. Lo Sing Mei Mag. App. 701 & 702/93. There the Appellant was sentenced to 3 months imprisonment for possession of one plastic straw containing 0.27 grammes of salts of esters of morphine. The appellant there was also sentenced to 18 months imprisonment for possession of 30 straws containing 4.03 grammes of salts of esters of morphine. There the appellant was also a multiple drug offender. The court recognised the latent risk of sale to others of the drugs but nevertheless considered that 18 months was very much near the top end. The sentence of 18 months was reduced to 15 months. Miss Mahomed submitted the sentence of 15 months imprisonment in the present case was too high.

5. In Tam Man Kit Cri. App. 656/93, the appellant was in possession of 50 straws containing a total of 5.82 grammes of esters of morphine and 70 straws containing a total of 9.10 grammes of esters of morphine. The sentence of two years imprisonment after a plea of guilty on each charge was held by the Court of Appeal to be manifestly excessive for simple possession and reduced to 12 months and 18 months respectively.

6. The quantity of 0.05 grammes in two phials was too insignificant to warrant a treatment of the Appellant on the high side of the scale of sentences for simple possession of dangerous drugs even for a multiple offender after a trial. Both the quantity and the number of packets were insufficient to raise any worry that the drugs might be sold to others. If the quantity were more, 15 months would not have been inappropriate. However, in the present case, 15 months after trial was manifestly excessive. The appeal against sentence was allowed and the sentence of 15 months was reduced to 12 months imprisonment.