HKSAR v. LIMBU, KHAGENDRA

HCMA 1112/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1112 OF 2001

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J U D G M E N T

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1. The appellant in this case appeals against a sentence, imposed on his conviction, after trial, on one charge of Possession of Dangerous Drugs which related to traces of "Ice" found on a tin-foil in the Appellant's possession. He was sentenced to five months' imprisonment and appeals that sentence on the grounds that it is too severe. He told the court that in an earlier case where he was sentenced in respect of possession of dangerous drugs, he only received a two month sentence.

2. There are no details before the court of the facts relating to that earlier occasion. The Magistrate considered the starting point for the quantity of "Ice" in this case. He referred to the cases of the Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125, which considered the nature of "Ice", Magistrates Appeal 531 to 533 of 2000 where a starting point of 6 to 9 months was suggested for simple possession, and also Magistrates Appeal 764 of 1999, where Yeung J considered that the starting point for small quantities should be a four to five month prison term.

3. Here, the Magistrate dealt correctly with the sentencing. He took into account the starting point and noted that the drug "Ice" should be dealt with in the same manner as heroin. He took into account the appellant's background and his previous record. The appellant has two previous offences for Possession of Dangerous Drugs, both occurring in 1996. He was sent to DATC in respect of those offences.

4. He has a further conviction for Possession of Prohibited Weapons in May 2000 and the Magistrate notes, in his Statement of Findings, that a two month sentence for Possession of Dangerous Drugs - in another case, SPK 2565/2001, does not yet appear on the appellant's criminal record. The Magistrate also noted that the appellant was subject to a DATC recall order for breach of the DATC order.

5. As he took all relevant matters into account, I consider that the Magistrate correctly assessed the starting point for sentence and the period of sentence also. The accused may consider himself fortunate that he was dealt with by a two month sentence in the earlier case, and fortunate also that he was given a five month sentence in this case. There is no merit in this appeal and it is dismissed.