HKSAR v. DINH HUU DOAN

HCMA1200/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1200 OF 1998

(On appeal from TMC 3236 of 1998)

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J U D G M E N T

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1. The appellant, Dinh Huu Doan, appeals against a sentence of 2 years' imprisonment for an offence of trafficking in dangerous drugs, contrary to Section 4 of the Dangerous Drugs Ordinance, passed on him on 18 November 1998 by Mr Neil Mitchell, Permanent Magistrate sitting at Tuen Mun Magistracy. The appellant pleaded not guilty to this offence, but was convicted of it after trial. He does not appeal his conviction.

2. At trial the appellant was represented by a duty lawyer. Very briefly, the facts of the case are that the appellant approached an undercover police officer at the rear gate of the Pillar Point Refugee Camp and offered to sell him one straw packet of dangerous drugs for $100. Within that straw packet was a mixture weighing .21 grammes, which had .19 grammes of heroin in it.

3. The appellant claims to be 32. He has 10 previous convictions, three of those are for possession of dangerous drugs, none are for trafficking in dangerous drugs.

4. In this appeal, the appellant relies on the general grounds of appeal set out in his notice of appeal, namely that the sentence is too severe.

5. In his submissions before me this morning, he says that the occasion on which he was arrested was the first time he had trafficked in dangerous drugs. He was working for someone else in selling dangerous drugs. He did that because his own addiction is so strong that he needed a supply from the man he was working for.

6. In arriving at sentence, Mr Mitchell reminded himself of the Court of Appeal's decision in LAU Tak-ming (1990) HKLR 390, in which the Court Of Appeal said that for an offence of trafficking in heroin where the narcotic content of the heroin is less than 10 grammes, sentences should be in the range of 2 to 5 years imprisonment after trial. Although the amount of heroin involved here is a relatively small amount, 0.19 grammes, Mr Mitchell had in mind that any offence of trafficking in dangerous drugs is a serious offence calling for severe punishment. It is only in the rarest of cases that a court could consider a sentence other than an immediate custodial one for such an offence.

7. The Court of Appeal, as Mr Mitchell was fully aware, have recommended that the starting point sentence for an offence of trafficking in dangerous drugs, where the sentence is imposed after trial, should be one of 2 years' imprisonment, Mr Mitchell was right to take that as his starting point. He demonstrated in his reasons for sentence that he was aware of the appellant's criminal record, which showed that he was a drug addict with previous convictions for drugs possession. He also demonstrated that he found that the appellant had no mitigation whatsoever, which certainly was the case. The defendant could claim no credit for a plea of guilty, which could have lowered his sentence.

8. I can find nothing wrong with Mr Mitchell's approach to sentence in this case. It is firmly based upon established sentencing principle, and is neither manifestly excessive, nor contrary to law, or principle. The appellant's appeal against sentence is dismissed.