HKSAR v. KWOK KAM WING

1999, No. MA 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 397 OF 1999

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J U D G M E N T

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1. For reasons which will appear, I propose to deal with two appeals in this judgment.

HCMA No. 397 of 1999, HKSAR v. Cheng Hing Sin

2. This Appellant faced one charge of possession of dangerous drugs contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 ("the Ordinance").

3. On the night of 11th February 1999, the Appellant was found in the exit of a MTR station in possession of 0.15 grammes of a mixture containing 0.11 grammes of heroin hydrochloride.

4. On 19th April 1999, J. L. Saunders Esq. sitting in the North Kowloon Magistracy sentenced the Appellant to nine months' imprisonment. The Appellant now appeals against this sentence, complaining that it is too severe.

5. Mr Saunders arrived at a sentence of nine months' imprisonment by taking a starting point of 12 months' imprisonment and by reducing it, as he put it, "by one-quarter to 9 months' imprisonment in recognition of the belated plea of guilty".

6. The 12-month starting point is, I am satisfied, proper. The circumstances which caused Mr Saunders to describe the guilty plea as "belated" appear from the first three paragraphs of his Reasons for Sentence, which read:

"The Appellant first appeared in court on 13th February 1999, when no plea was taken and the charge adjourned for the Government Chemists Certificate. He was bailed and appeared again on 22nd February 1999 and again on 8th March 1999 when he pleaded not guilty to a single charge of possession of a dangerous drug, namely 1 packet containing 0.15 grammes of a mixture containing 0.11 grammes of heroin hydrochloride. The matter was set down for trial on 29th March 1999.

On that day he at first continued to deny the charge but later in the day admitted the offence and agreed the summary of facts submitted by the prosecution. He was convicted by Mr. Wyeth and remanded in jail custody for a report from the Drug Addiction Treatment Centre. He had 23 previous convictions of which 6 were drug related. He admitted those convictions.

On 19th April 1999 he appeared before me and confirmed his admission of the charge and the facts. He asked for a suspended sentence or a fine."

7. Mr Lam for the prosecution quite rightly told me that the number of previous convictions of the Appellant should be 11 instead of 23. And he submitted that that should make no difference to the sentence. I agree.

8. It can be seen that the Appellant maintained his plea of not guilty at the first day of trial, and only changed it to a plea of guilty later that day. In those circumstances, I consider the Magistrate justified in treating the guilty plea as "belated" and giving for it a discount of less than the usual one-third.

9. This appeal against sentence is dismissed.

HCMA No. 398 of 1999, HKSAR v. Kwok Kam Wing

10. This Appellant faced one charge of injecting a dangerous drug contrary to section 8(1)(b) and (2) of the Ordinance. In short, the facts were that on 9th January 1999 the Appellant was found in a staircase injecting himself with a quantity of dangerous drugs consisting of heroin and midazolam.

11. His case was dealt with in the North Kowloon Magistracy. He appeared before A. J. Wyeth Esq. on 12th March 1999 when he pleaded not guilty. The case was set down for trial on 24th March 1999. On that day, he pleaded guilty. Mr Wyeth sent for a Drug Addiction Treatment Centre suitability report.

12. Sentencing took place on 14th April 1999, before another Magistrate, J. L. Saunders Esq. The Appellant was represented by a duty lawyer, who urged a fine or suspended sentence. But Mr Saunders imposed a sentence of nine months' imprisonment.

13. Mr Saunders made two months of this nine-month sentence concurrent with a three-month sentence which he had imposed on the Appellant on the same day for possession of apparatus fit and intended for injecting a dangerous drug, contrary to section 36 of the Ordinance.

14. The Appellant now appeals against the nine-month sentence on the injecting charge, complaining that it is too severe.

15. Mr Saunders took a starting point of 12 months' imprisonment which he said he did "in accordance with current sentencing practice and guidelines on the simple possession of dangerous drugs". The reasons which he gave leading up to that are set out thus in his Reasons for Sentence:

"I considered it appropriate to have regard to R. v. Law Sing where Stock J. held that the display of the paraphernalia of drug consumption in a public place or on a staircase of a block of flats to which members of the public have access was an aggravating feature which warrants an upward adjustment to sentence, the more so if the circumstances demonstrate that the person in possession has just used those instruments in that place.

The usual sentence for the possession of apparatus is 3 months imprisonment on a plea. The circumstances demonstrated that at the time of the arrest the Appellant was in possession of dangerous drugs. I did not consider that he should be dealt with less leniently than a person found in the street with dangerous drugs concealed about his person. In other words he should have no advantage if he was found in the act of injecting, thereby depriving the police of determining the quantity of drugs he possessed."

16. In all the circumstances, I consider that starting point to be justified. This brings me to the discount. Mr Saunders said that he reduced the sentence "by one-quarter to 9 months' imprisonment in recognition of the belated plea of guilty". The fact of the matter is that the Appellant pleaded guilty at the beginning of the day fixed for trial even though he did not plead guilty when he was first brought up for plea on an earlier occasion. This appeal is therefore different from the first one which I dealt with in this judgment.

17. In my judgment, this Appellant should have received the usual one-third discount. Accordingly, I allow this appeal and reduce the sentence to one of eight months' imprisonment. The rest of the Magistrate's order is not disturbed, namely that two months of this eight-month sentence is to run concurrently with the three-month sentence imposed earlier on the same day by the Magistrate.