HKSAR v. Cheung Man Ha

HCMA 389/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 389 OF 2016

(ON APPEAL FROM ESCC 1744 OF 2016)

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REASONS FOR JUDGMENT

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1.The appellant was sentenced to the Drug Addiction Treatment Centre (DATC) after she had pleaded guilty to the offence of possession of a dangerous drug contrary to section 8(1)(a) and (2) of the Dangerous Drug Ordinance Cap 134.

2.She now appeals against her sentence on the grounds that she is dissatisfied and feels aggrieved with the sentence.  She seeks for a non-custodial sentence either by way of a community service order or a probation order.

Facts of the case

3.At around 7:40 pm on 7 April 2016, the police arrived at the appellant’s home in response to a report made by the appellant’s mother.  The appellant’s mother produced to the police a glass bottle fitted with two plastic straws (“the bottle”) which the appellant had earlier, in a dizzy condition, held in her hand. 

4.The police located the appellant in a bedroom, she admitted to the police that the bottle belonged to her and she used it to smoke dangerous drugs earlier.  She was then arrested.  Under caution, she admitted that the bottle contained methamphetamine and it was re-modeled from a salt bottle for drug consumption.  The Government chemist confirmed that the bottle contained 45 milliliters of a liquid containing traces of methamphetamine.

5.After her plea of guilty the magistrate[1] called for probation and DATC reports.  She was however sentenced by the learned magistrate Mr Joseph To (the magistrate) after he had confirmed her plea of guilty and admission of the facts. 

Probation and DATC reports

6.The probation officer concluded that probation was unsuitable.  The DATC report concluded that the appellant was a drug dependant and was suitable for admission to DATC. 

Mitigation

7.The appellant’s counsel submitted in mitigation that there was no factual dispute as to contents of both reports but the appellant expressed that she did not want to be sentenced to DATC because she believed she could quit her drug dependency without the assistance of any third party but was confident she could quit her addiction on her own.

Reasons for sentence

8.The magistrate noted that the appellant was 35 years of age and of clear record.  He was of the view that there were good and sufficient grounds for the probation officer to conclude that probation supervision was unsuitable.  He adopted the recommendations of both the probation and rehabilitation officers as set out in the reports, the contents of which were not disputed by the appellant (both had included a detailed history of the appellant’s drug abuse) and considered that public interests fall heavily in favour of a DATC order.

Discussion

9.The appellant presented her written submissions at the hearing.  These were principally that in the past two months since she was at DATC she released the harmful effects of taking dangerous drugs and was desperate to regain a full family.  She had over looked her health and was hoping to change herself and be released back into the community to start afresh.  She sought to be released so that she could look after her newly born son[2]. 

10.As could be seen by her written submissions and in exploring the matter with the appellant at the hearing she had no plans nor was she in accord to seek voluntarily treatment for her drug dependency.  It remained her stance to “change herself”.  Calling for a further probation report was therefore dismissed.

11.It is apparent from the probation report that the appellant has received counselling services from the SWD since 2010.  The appellant is 35 years of age and has been dependent on drugs for many years.  At paragraph 9 of the probation report it states as follows:

“……. her deterioration in drug problem probably started when she was a teenager. Though she once managed to wean off her drug habit after the birth of her daughter, her lacking ability to handle the frustration in life that made her easily resorted to abuse drugs to comfort herself. As a result of her drug abuse, she developed some mental problem since 2010. Throughout the past years she received ample counselling and assistance from social workers of different organizations and medical professionals. Yet her negative response towards the advice of the professionals and uncooperative attitudes clearly reflect a casual attitude towards low motivation to change and strong wish to maintain her own way….. Her past history of rejecting professional help and insisting on her own way also cost doubts on her ability of self control in the open setting. Though she claims to have the ability to quit drugs with her willpower, her continued taking dangerous drugs after her arrest for the present offence clearly reflect a casual attitude towards drugs. When further taking into account a week family support her lack of insight in her drug and mental problem, her reluctance to go for residential drug detoxification program and a poor track record towards counselling, it is considered the defendant would unlikely benefit from probation's provision in the open setting which is therefore not recommended.”

Conclusion

12.Although the appellant is a fresh offender the magistrate had taken into account the contents of both the probation and DATC reports and the appellant’s past performance over the years and her lack of insight in to her drug dependency. 

13.Having taken into account all the relevant facts and circumstances of the case he was entitled to sentence the appellant to DATC, the sentence is neither wrong in principle nor manifestly excessive.  The sentence passed upon the appellant is one of a rehabilitative nature.  I do not find any grounds for allowing the appeal.  In the circumstances the appeal is dismissed.

Ms Claudia Ng, SPP(Ag) of the Department of Justice, for the respondent

The appellant appeared in person