HKSAR v. WONG YUEN SHING

HCMA 259/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 259 OF 1999

(On appeal from KTCC 239 of 1999)

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J U D G M E N T

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1. The Appellant was convicted on his own plea before a magistrate at Kwun Tong Magistracy of possession of 0.16 grammes of heroin contrary to s. 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

2. The magistrate imposed a sentence of 8 months imprisonment. The Appellant appeals on the basis that the sentence is too severe.

3. The learned magistrate, following the Appellant's conviction, had adjourned sentence so as to obtain a report on the suitability of the Appellant for treatment at a Drug Addiction Treatment Centre.

4. Perhaps unsurprisingly the report was unfavourable. The Appellant had 17 previous drug related offences and a history of failed drug addiction treatments, he having being sent to Drug Addiction Treatment Centres unsuccessfully on no less than 5 previous occasions.

5. The magistrate said this in his Statement of Findings:

"To impose a fine or suspended sentence on the appellant who is a persistent offender would be wrong in principal and result in a manifestly inadequate sentence. I regard myself bound by the decision of CHAN Tak-king A.R. 21/1988 and HONG Yau-fat M.A. 6/1990 and was satisfied that a prison term was appropriate in the circumstances."

6. Accordingly the magistrate quite properly in my view concluded that imprisonment was the appropriate sentence.

7. He took a starting point of 12 months imprisonment. That is in accordance with previous authority such as R. v. Li Siu Man M.A. 248/96 and R. v. Lam Wai Ping M.A. 239/97. In view of the Appellant's plea of guilty which the magistrate obviously regarded as the only significant mitigation he reduced that starting point of sentence by 1/3 resulting in a sentence of 8 months imprisonment.

8. There is nothing in the magistrates reasoning which can be criticised or in the level of sentence he imposed. This appeal is dismissed.