HKSAR v. CHU YIN LUNG

HCMA 490/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 490 OF 2000

(ON APPEAL FROM TMCC 3983 OF 1999)

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J U D G M E N T

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1. The defendant was convicted after trial of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. He appeals against both his conviction and sentence.

2. The defendant was seen by a party of police officers performing anti-car theft duties in Kam Sheung Road, Pat Heung. He was riding a bicycle towards the officers and kept looking to the rear. The officers intercepted him and found two syringes and a Marlboro cigarette packet, inside which was a plastic tube containing heroin. The drugs were of a small quantity weighing 0.53 gramme containing 0.09 gramme of heroin hydrochloride. The defendant gave evidence denying that the drugs were found on him.

3. Like the counsel who represented him at his trial, the defendant attacked the credibility of his arresting officer who recorded in his notebook that the officer stopped and searched him at 7:48 p.m. when the officer also alleged that the defendant gave a cautioned statement at 6:49 p.m. This point had been canvassed by his counsel in cross- examination and had been specifically considered by the trial magistrate. The trial magistrate accepted the officer's explanation that the error was due to the officer's negligence, which did not affect his credibility. He did not find the defendant credible. He was then satisfied that the defendant did possess the syringe and dangerous drugs. These are finding of facts and assessment of credibility of witnesses which I do not consider I should interfere. The trial magistrate had seen the demeanour of the prosecution witnesses and the defendant in the witness box and was in a better position to assess their credibility than me sitting as an appellate judge. There are ample evidence for the magistrate to make the finding as he did. The appeal against conviction must be dismissed.

4. The defendant is now 48 years old and is unemployed. He had ten convictions between 1966 and 1996. His last drug conviction was in 1996, which he claimed to be in respect of methadone and for which he was fined. Apart from that he was last convicted in 1983 for possession of dangerous drugs. He submitted that it was remarkable that he had maintained drug free for 17 years. He asked for a non custodial sentence so that he could look after his grand daughter.

5. Taking what his words are worth, he had no convictions in respect of heroin for 17 years. However, that does not mean he has been drug free all these years and that the present offence was due to a momentary weakness. According to the DATC report, he is a deep rooted addict and that the medical officer considered him drug dependent. On his own admission to the intake officer, he consumed heroin by injection and his daily consumption was $150. He is unemployed and is not of such an advanced age that deserves humanitarian consideration. He is a man that calls for either DATC treatment or a period of detention to keep him free from drugs. His grand daughter is being well looked after. In the circumstances, an immediate custodial sentence is appropriate.

6. The trial magistrate has adopted the correct starting point of 12 to 18 months based on which he sentenced the defendant to 9 months after trial. The sentence is appropriate for the defendant with his background, previous history and the quantity involved and is in line with The Queen v. Leung Moon Wah, Magistracy Appeal No. 643 of 1996. Accordingly the appeal against sentence is also dismissed.