HKSAR v. CHUNG LAM

bjbj HCMA 889/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. HCMA 889 OF 2009 (ON APPEAL FROM KCCC 4867/2009) ____

BETWEEN HKSAR Respondent and CHUNG LAM Appellant ____ Before: Hon Mackintosh J in Court Date of Hearing: 8 January 2010 Date of Judgment: 8 January 2010 ______

J U D G M E N T ___ This is an appeal against the sentence of 12 months imprisonment imposed by the Kowloon City Magistracy on 9 October 2009 for an offence of Possession of a dangerous drug . The drug in question consisted of a very small quantity of midazolam contained in a tablet which was wrapped in plastic. But the circumstances of the possession of the dangerous drug are highly relevant to sentence because this was a case of the appellant taking the dangerous drug into a prison. The appellant was remanded in custody on 1 September 2009 on a charge of possession of a dangerous drug; and after arrival at Lai Chi Kok Reception Centre he was warned that he must surrender all restricted items in his possession, but he remained silent. In the evening of the same day, during the course of a routine search, a correctional service officer found a packet containing the tablet under the appellant s tongue. Today, the appellant submits that to this court that he had taken the drug earlier in the same day and he was not conscious of the presence of the packet under his tongue. Such a claim can be rejected on its face because he must have been aware of this packet under his tongue. And indeed, when he was cautioned in respect of this matter at the time that the packet was recovered, he admitted having bought it shortly before attending court on 1 September. He concealed the

packet under his tongue, intending to consume it that night. He continued to keep the tablet when he was sent to Lai Chi Kok Reception Centre. The quantity dangerous drug was, as I have already observed, very small indeed. The government chemist confirmed that the tablet in question contained 0.01 gramme of midazolam. The Magistrate when dealing with the appellant had regard to a Drug Addiction Treatment Centre (

DATC ) report, which had been obtained shortly before in another case. That report demonstrated that, by reason of the long history of addiction to dangerous drugs, and the repeated failure of the appellant to benefit from 3 previous visits to DATC, there was nothing to be gained by making a further DATC order, and so he was not suitable for DATC. Having considered that report, the Magistrate sentenced the appellant to a term of imprisonment. The appellant is 61 years of age, married but divorced. As the DATC report disclosed, he had a long history of involvement in the misuse of dangerous drugs and other offences of a type often associated with drug abuse. Normally for a very small quantity of midazolam, where the offender is a repeat offender, and is not suitable for DATC, the court will consider a short sentence of improvement, perhaps of the order of 3 or 4 months. However, as has been recognized on many occasions in the past, the taking of dangerous drugs into a correctional institution should be regarded as a very serious aggravation of the offence of possession of a dangerous drug. The reason is obvious. It is essential for the good order of prisons that those who are committed to such institutions do not seek to smuggle in dangerous drugs; and it is essential that those who may consider smuggling drugs into prison be deterred. That is why heavy sentences are generally

imposed, and the Magistrate in dealing with this case referred to a number of previous cases both during the course of the sentencing procedure and his reasons for sentence. In mitigation, counsel for the appellant referred him to a case called HKSAR v Chan Wai Hung HCMA 631/2004, in which the appellant was in possession of a syringe containing traces of midazolam during his detention in the court cell of a magistrates court. On appeal, the appellate court emphasized that the minimal amount of the dangerous drug and its nature, and reduced the starting point of the sentence from 12 months to 6 months. No reference was made within that case to the decision of the Court of Appeal case of Attorney General v Au Kwok Chai CAAR 22/1995 in which a very small quantity (0.06 grammes) of heroin hydrochloride was smuggled into Lai Chi Kok Reception Centre. The Court of Appeal expressed the view that the smuggling of dangerous drugs into prison was a very serious offence which called for a deterrent sentence. And in that case, on review, the Court of Appeal significantly increased the sentence from 1 month s imprisonment to 12 months. These principles have been followed in numerous other cases, and indeed it was the basis of the decision in this particular case. The appellant referred me to what he described as being similar cases which he said he had heard about, where lower terms of

imprisonment were imposed. But the principles were laid down in that case of Au Kwok Chai and I am in no doubt that they are the principles that should be applied. Given that the appellant had pleaded guilty to the possession of the dangerous drugs, the Magistrate took a starting point of sentence of 18 months imprisonment which he reduced to 12 months to reflect the plea. It is not difficult to see why the Magistrate came to such a conclusion as to the starting point; but I have to say I differ slightly in my view as to where the starting point should be in this particular case given the nature of drug, its small quantity and the manifestly personal use to which it was to be put. I take the view that the starting point should be 15 months imprisonment, and that it should be reduced by virtue of the appellant s plea to a 10-month imprisonment. Although this is not a substantial variation of the sentence, nevertheless, I am satisfied it is right in the circumstances. To that limited extent, I allow the appeal and reduce the sentence to one of 10 months imprisonment. The original sentence was ordered to run consecutively to a term the accused was serving; and for the avoidance of doubt, I also direct that this sentence should run consecutively to that other term of imprisonment, in ESCC 4143/2009. (Colin Mackintosh) Judge of the Court of First Instance High Court Ms June Cheung, Senior Public Prosecutor, for the Respondent, HKSAR The Appellant, in person, present

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