HKSAR v. LEUNG YUI KEUNG

HCMA322/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.322 OF 2003

(ON APPEAL FROM ESCC 148 OF 2003)

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J U D G M E N T

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1. This is an appeal against sentence only. The 52-year-old appellant was convicted, on his own plea, of an offence of possession of two packets containing a mixture of 0.38 grammes of a substance containing heroin and tablet fragments containing 9 milligrammes of midazolam. He was sentenced to eight months' imprisonment.

2. The appellant complains that the sentence was too severe and that, particularly, the magistrate should have adopted a starting point of sentence of nine months' imprisonment rather than the 12 months that he did.

3. The facts are simple enough. The appellant had been stopped and searched in Chai Wan Road by a police patrol who thought he had been acting suspiciously. The charged drugs were found in his hand.

4. The appellant has some 22 previous drug related offences stretching back to 1973. He had, on previous occasions, been ordered to be detained in a Drug Addiction Treatment Centre ("DATC") but had relapsed and further offended shortly after his release on each occasion. Not surprisingly, therefore, the DATC report obtained by the magistrate on this occasion found the appellant to be unsuitable.

5. The magistrate considered quite properly that given the appellant was a persistent offender, a fine was inappropriate (see Chan Tak King v. Chan Pau Yau [1989] 2 HKLR 428). He then concluded that a sentence of imprisonment was appropriate. That conclusion cannot be criticised. He took a starting point of sentence of 12 months' imprisonment. In that regard, he said :

"5. I also bore in mind the case of SO Ma-kwai [1993] 1 HKCLR 92, in which the court accepted the normal range of sentence on a plea of guilty for offenders with a history of multiple offences of possession of drugs was in the range of 9 to 12 months. Recent decisions show there has been no change in this regard (see for example SHEK Sze-fai MA 70/99; CHU Tim-keung MA 286/2001; LEUNG Chan-kit MA906/2002; and TANG Sze-woo MA 41/2003)."

The magistrate goes on to say :

"6. The appellant aged 52, had 31 previous convictions 22 relating to dangerous drugs. ...The appellant was, in my view, a multiple offender for offences of possession of drugs."

6. In my view, given the previous history of persistent drug offences by the appellant such a starting point of sentence cannot be criticised. The end result of that starting point of sentence was that the appellant, after being allowed credit for his plea, received a sentence of eight months' imprisonment. That was in no way in excess of the range of sentences for such offences set out in the cases cited by the magistrate.

7. In my view, the sentence arrived at after the appellant's plea of guilty of eight months' imprisonment cannot be said to be too severe and the appeal is dismissed.