R. v. CHIN TAK HOI

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J U D G M E N T

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Fuad, V.-P. (giving he judgment of the court):

1. Chin Tak Hoi was convicted in the High Court (before Deputy Judge Patrick Chan and a jury)on  22nd October 1991, after a six-day trial, of possessing dangerous drugs for the purpose of unlawful trafficking. He was sentenced to 8 years imprisonment and from that sentence, imposed on him on the day of his conviction, he seeks leave to appeal.

2. The facts were that an 1st June 1990, late in the evening, a police party raided a flat in Fuk Wah Street, Shamshuipo. They found the applicant there together with a woman. She was jointly indicted with the applicant but was acquitted by the jury. The flat comprised a small room with a kitchen and a toilet. The total amount of drugs found in the premises amounted to 141.59 grammes of a mixture containing 117.74 grammes of salts of esters of morphine. They were No.4 heroin. When the accused was arrested he admitted that the "white powder". was his. Other-items connected with the packaging of drugs were found in the room, including over 400 bags of various sizes in which drugs would be packed.

3. The applicant's defence at the trial was that although he admitted possession of the drugs, they were for his own consumption because head been a drug addict for over 20 years and he used a great deal of drugs to assuage his addiction.

4. In passing sentence the Deputy Judge said that it was clear that the applicant was a drug addict, and a hard-core addict at that, and that he was willing to accept that at least part of the drugs found were for the applicant's own consumption. The judge referred to a guideline case in the Court of Appeal (Lau Tak Ming's case) and correctly stated that in view of the quantity of drugs found, the case fell within the 8 to 12 years bracket, although he recognised that the guidelines laid down by the Court of Appeal were not intended in any way to be a strait-jacket upon the discretion of the court.

5. The judge took into consideration the applicant's background and his age (which was about 41), that he had been in steady employment, and that his wife and daughter had left him because of his addiction. The judge also took into account the applicant's record which showed that he had been before the courts on some 19 occasions in the past. He had various convictions going back to 1968, 8 of which were for drugs offences. In respect of these drugs offences he had been fined on several occasions, and sent to a Drug Addiction Treatment Centre in 1973. He had served short terms of imprisonment in 1976 and 1983 and on 17th March 1989 he received a suspended sentence of 9 months' imprisonment for possessing dangerous drugs.

6. Before us, the applicant in effect repeated his defence before the jury, when asking this court to reduce his sentence. We are unable to say that the sentence is one with which we can interfere. The sentence imposed was entirely appropriate in all the circumstances.

7. Before we take leave of this case we feel we should say something more about the sentence imposed on 17th March 1989 which, as we have said, was 9 months' imprisonment, suspended for two years. The offence with which this application is concerned was committed on 1st June 1990 and so was committed within the operational period of the suspended sentence. When the judge's attention was drawn to this fact, he commented: "... although it is related, it is very different in nature." Counsel then representing the applicant added that it was an offence of quite a different nature since it was a case of simple possession only.

8. With very great respect to the learned Deputy Judge, we would draw his attention to the provisions of section 109C of the Criminal Procedure Ordinance and point out that under subsection (1) in these circumstances a court is bound to make an order that the suspended sentence shall take effect with the original term unaltered "unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence" and the subsection goes on to stipulate "where it is of that opinion the court shall state its reasons." We do not propose to consider activating the sentence ourselves although we undoubtedly have power to do so since this is an appeal against sentence. We merely comment that without hearing argument on the matter, we find it difficult on the material before us to understand how the judge felt able not to activate the suspended sentence in the light of the provisions of section 109C of the Criminal Procedure Ordinance. It may be that the applicant is most fortunate that he is not required to serve an extra 9 months imprisonment.

9. The application for leave to appeal against sentence is refused.