THE QUEEN v. MO KWOK PUI

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.1080 OF 1991

------------------

BETWEEN

------------------

----------------------

J U D G M E N T

----------------------

1. On the 11th October 1991, the appellant pleaded guilty to possession of a dangerous drug, contrary to s.7(1)(a) of the Dangerous Drugs Ordinance.

2. The way the magistrate then approached the matter of sentence is set out in the Statement of Findings as follows:

"I remanded the Appellant for the preparation of a report on his suitability for admission to Drug Addiction Treatment Centre as I was obliged to do in terms of the Ordinance. However, I indicated to the Appellant and his representative that this should not be regarded as an indication that committal to such institution would result even if the Appellant were found suitable for admission. On the 25th October 1991 I had the benefit of the report from the Commissioner of Correctional services : it indicated that the Appellant is drug dependant but is not suitable for admission to Drug Addiction Treatment Centre for the reasons appearing therein.

I listened to such submission as was advanced on behalf of the Appellant. I sentenced the Appellant to serve a period of 15 months imprisonment.

The Appellant appeals that sentence.

FACTORS IN FAVOUR OF THE APPELLANT

I regarded the following factors as being in the Appellant's favour :

1. his plea of guilty albeit to a lesser offence than that with which he was charged;

2. he is married: according to the Drug Addiction Treatment Centre report he has two children by that marriage yet, according to the Appellant's representative, he has one child; and

3. he has maintained some form of employment.

FACTORS ADVERSE TO THE APPELLANT

I regard the following factors as being contrary to the Appellant's interests:

4. the offence of possession of dangerous drugs is a prevalent offence despite continued efforts to reduce its incidence;

5. it is an offence which is regarded seriously by the Legislature which provides for substantial penalties;

6. the Appellant was in possession of a large number of packets of dangerous drugs containing, in terms of matters coming before a Magistrate, an appreciably larger than usual quantity of narcotic;

7. the Appellant has a record of six previous appearances in Court resulting in conviction on eight offences of which five relate to offences involving drugs. In addition the Appellant made two further appearances resulting in three convictions which were 'not recorded'; and

8. the Appellant has three times been committed to Drug Addiction Treatment Centre over a four year period.

THE SENTENCE

Both the Drug Addiction Treatment Centre report and the Appellant's representative made reference to a forthcoming appearance by the Appellant in the District Court on charges also involving dangerous drugs. Naturally, I disregarded this information in considering sentence.

I recognised that in accordance with

R. v. VY Van Kien and ANOTHER Mag. App 1162/90

as a general principle previous convictions are relevant only to determine the amount of discount to be allowed when compared with a clear record and that recidivism is not a factor to be used to increase sentence.

However, it has been recognised, in the case of an offender repeatedly committing theft from shops, that persistent offenders may expect to be dealt with more robustly than others :

R v. CHUNG Kun-wai App. for Review 8/88

There seemed to me to be no reason why this principle should not apply to a persistent offender in drug-related offences - and that the Appellant clearly fell into such a category. On a different basis this approach seems to have found favour in :

R v. CHAN Tak-king App. for Review 21/88

R v. HONG Yau-fat Mag. App. 6/90 and, in

R v. LAU Tak-ming and ANOTHER Crim. App. 230/89

where the Court said that a factor that may properly be taken into account by the sentencer is '... his previous history of narcotic offences ...'

The circumstances of the instant offence and offender clearly called for a custodial sentence. In determining the duration of that sentence I had regard to the guidelines set out in LAU Tak-ming Crim. App. 230/89 which, in brief, indicate that, after trial, a sentence of two to five years imprisonment is appropriate for unlawful trafficking of.up to 10 grammes of the narcotic seized.

I recognised that in cases of simple possession quantity of the drugs involved is not of the same significance as in trafficking cases and that nine months imprisonment is 'usually appropriate':

R v. LAI Sik-keung Crim. App. 173/89

Historicarly, sentences imposed for simple possession have been lower than those imposed for trafficking in a dangerous drugs. Indeed, sentences of six to nine months imprisonment are almost routinely meted out where a person is found not to be suitabie for Drug Addiction Treatment Centre.

However, these sentences generally relate to simple possession of noticeably smaller quantities of narcotic than in this case.

Accordingly, I was of the opinion that a greater sentence was both just fied and required in the instant case: that a measure of robustness was not misplaced in all the circumstances.

I sentenced the Appellant accordingly to serve a period of fifteen months imprisonment."

3. Mr Andy Hong who represents the appellant urges me to vary the sentence on the following grounds:

"(1)     the learned Magistrate non-directed himself to, or failed to follow the guidelines as to appropriate range of sentence for offenders who persistently appear before the Court on 'simple' possession charges laid down by the Court of Appeal in A.G. v. Chan Tak King A.R. 21 and 22 of 1988;

(2)     the learned Magistrate non-directed himself to the question what should be the appropriate period to keep the Appellant from dangerous drugs as will be beneficial to him;

(3)     the learned Magistrate erred in giving undue consideration on the weight of drugs involved;

(4)     the sentence of 15 months is out of proportion of the gravity of the offence which the Appellant had been convicted;

(5)     in all circumstances, the sentence of 15 months imprisonment is too severe."

4. In Chan Tak King, the Court of Appeal was actually dealing with two appeals. Both appellants had lengthy records of previous convictions. The first was aged 48 and had 53 previous convictions of which 26 were drug related. The second had 21 drug related previous convictions out of a total of 35, he was 52 years of age. Fuad, V.-P. giving the judgment of the court said at p.16:-

"In our view, in the light of the pleas of guilty, the magistrate should have considered immediate custodial sentences in the 6 to 9 months range, having first complied with the provisions of s.54A of the Dangerous Drugs Ordinance, where those provisions are applicable, and decided whether or not to send either offender to a DATC depending upon the content of the Commissioner's report.

In conclusion, we would state our view that the fact that an offender is a drug addict does not justify a sentence which is out of proportion to the gravity of the offence he has committed so that he may receive treatment in prison. However, the sort of sentence we suggest should be considered for persistent drug possession offenders would offer some chance of benefit being derived from the detention. In other words, if an offender's drug addiction can be treated in prison so much the better but no sentence should be passed which is disproportionate to the facts of the case when any mitigating circumstances are taken into account."

5. It is true that the quantity of drugs in those two appeals which each addict had in his possession was less than that of the appellant in the present case. However, I agree with Mr Hung, that the quantity of the drugs is not such a significant factor in passing sentence for offences of simple possession.

6. Taking all things into consideration, bearing in mind the comparatively large quantity of the drugs involved in the present case, and the appellant's previous record, I consider that a sentence should be imposed at the top end of the range which had been recommended by the Court of Appeal. I therefore allow the appeal and reduce the sentence to nine months imprisonment.