(Appellate Jurisdiction)


(On Appeal From KTCC 2252 OF 2005)



  HKSAR Respondent
  TSUI LONG YIN (徐朗賢) Appellant


Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 19 October 2005

Date of Judgment : 19 October 2005




1. The appellant was convicted on her own plea of one charge of ‘possession of apparatus fit and intended for the injection of dangerousdrug’, contrary to sections 36(1) and (2) of the Dangerous Drugs Ordinance (Cap.134). She was sentenced to 6 months’ imprisonment, to run consecutively to a 2 months’ suspended sentence activated bythe magistrate. She appeals against that sentence.

2. The agreed facts were as follows :

“Deft is a patient of Caritas Medical Center who is wheel chair bound. At about 0315 hours on 2005-02-19, PW1 was conducting aroutine check inside Room 732, Block A, 7/F, Wai Shun Block, Caritas Medical Center. Meanwhile, PW1 did not find Deft on her bedand therefore conducted a search at the vicinity. Upon reaching the lift lobby, 7/F, Wai Shun Block, PW1 found Deft sitting on herwheel-chair with two syringes between her thighs. PW1 then seized the two syringes and locked into the locker. At about 0645 hourson 2005-02-19, PW1 informed Medical Officer Dr. LAW Ka-fai with police informed. PW2 was then deployed to handle the case. At 0900hours on the same day, Deft was arrested with exhibit seized. Under caution, Deft admitted the offence.”

3. Both the syringes contained midazolam.

4. Next is the relevant portion of the magistrate’s Reasons for Sentence :

3. After the appellant was convicted as charged, the court was informed that she had 19 previous convictions of which 13 weredrug related. She was also in breach of a suspended sentence. She had been sentenced to 2 months imprisonment suspendedfor 12 months on the 3rd May 2004 in Case number NK 2401/04. I called for a Drug Addiction Treatment Centre Report and the appellant was remanded in custodyfor 14 days.
4. The report was detailed and considered her not suitable for admission for several reasons. She was a deep- rooted addict with a 16 years drug addiction and was not at all motivated to give up drugs. She had been sentenced to the center3 times in the past and after each release, relapsed into drug abuse. The report concludes she is an incorrigible characterand repeatedly failed to give up drugs. Not only will she not benefit from a 4th admission but would be an adverse influence on other inmates. Considering this report and her past record, there was no option butan immediate custodial sentence.
5. I took a 9 month starting point and gave her a one third deduction for her plea of guilty. I sentenced her to 6 months imprisonment. This offence was committed during the suspension period of case number NK 2401/04. I also activated the suspended sentenceshe breached. There was no reason not to and I made it consecutive. She was sentenced to a total of 8 months imprisonment.”

5. Before me, counsel for the appellant raises four grounds :

a. The learned Magistrate erred in law by imposing a sentence for the present offence which is manifestly excessive.
b. The learned Magistrate erred in principle on sentencing by adopting a starting point of nine months’ imprisonment whenthe accepted tariff for this offence after a guilty plea is three months’ imprisonment.
c. The learned Magistrate did not state any reason in adopting the starting point of nine months’ imprisonment in court. In her ‘Reason for Sentence’, the starting point of the sentence appeared to be based on the DATC suitability reportand the past record of the Appellant, i.e., that the Appellant is an incorrigible character and a repeated drug offender with thirteenprevious drug related convictions, neither of which is an aggravating factor in enhancing sentence. The learned Magistrate did notrefer to any authority to support the said starting point. The learned Magistrate had therefore departed from the accepted tarifffor this offence without a valid reason.
d. The learned Magistrate failed to consider the totality principle in ordering the activated suspended sentence of 2 months’ imprisonment to run consecutively to the sentence of the present offence. The total of 8 months imprisonment is manifestly excessive in the premises.”

6. Government counsel concedes that the customary sentence for this offence is 3 months’ imprisonment after plea, but stresses thatthat is not a straitjacket for magistrates. She cites R. v. Law Sing [1996] 4 HKC 477, the relevant part of which reads :

“It seems established that a sentence in the order of three months’ imprisonment is the accepted tariff for cases of possessionof instruments fit and intended to be used for the consumption of drugs. But I do not think that magistrates are shackled to thatterm come what may. Magistrates are entitled, indeed bound, to regard the circumstances of each case, and this magistrate was, inmy judgment, quite right to take a more serious view of the matter because of the place and circumstances of the offence. In myjudgment, the display of the paraphernalia of drug consumption in a public place or on the staircase of a block of flats to whichmembers of the public and youngsters have access, and can be expected to go is an aggravating feature which warrants an upward adjustmentto the sentence, the more so if the circumstances of possession demonstrate that the person in possession had just used those instrumentsin that place.”

7. In all the circumstances of the present case, I do feel that the 6-month term imposed on the appellant is excessive. Given thatit was committed in a public hospital with all the possible health hazards thus incurring, I would substitute it with a term of fourmonths, still to run consecutively to the 2-month suspended term now activated. There is no reason for it not to. Nor will it infringeon the totality principle. That is my judgment.

8. The appeal is allowed to the extent mentioned.

  (D. Pang)
Deputy High Court Judge

Ms Fung Mei Ki, Mickey, GC of the Department of Justice, for HKSAR

Mr S.Y, Fan, Edward, instructed by Messrs Henry Lam & Associates, assigned by the Legal Aid Department, for the Appellant