HKSAR v. Dante Elaine Cipolla Moran

HCMA 212/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 212 OF 2017

(ON APPEAL FROM ESCC NO 292 OF 2017)

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JUDGMENT

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1.The appellant pleaded guilty to 2 counts of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134, involving 1.34 grammes of methamphetamine hydrochloride in Charge 1 and 6.97 grammes of herbal cannabis and traces of methamphetamine hydrochloride for Charge 2. She was sentenced to a concurrent order of detention in a Drug Addiction Treatment Centre (“DATC”).

2.She appeals against the sentence.

FACTS ADMITTED

3.At about 1343 hours on 17 November 2016, the police while investigating a case of “suspected mentally incapacitated person found” at 3/F., Hang Fat Building, 138-140 Wing Lok Street, Central found the appellant who appeared to be mentally disordered.  In a purple box the appellant was holding in her right hand, the police found 1.34 grammes of methamphetamine hydrochloride.  The appellant was arrested and taken to Queen Mary Hospital for treatment.

4.Upon a search of the living place of the appellant at Room 6 of the above address, a glass bottle connected to 2 plastic straws and a plastic bag were found inside a metal container.  The glass bottle contained some liquid with traces of methamphetamine hydrochloride while the plastic bag contained 6.97 grammes of herbal cannabis.  An occupant of the flat who was also the boyfriend of the appellant disclosed that the items belonged to the appellant.

5.The appellant admitted under caution that the dangerous drugs belonged to her.

GROUNDS OF APPEAL

6.The appellant submits that she has the support of her family and should be put on probation instead of being sent to DATC.

DISCUSSION

7.The appellant is aged 19 and is an American living in Hong Kong with her parents who are teachers and 2 siblings who are students.  She received education up to Grade 13 in an international school in Hong Kong and quitted because of poor attendance and academic performance.  She has worked as part-time waitress in various fast food restaurants and as part-time model. She has a clear record.

8.In sentencing the appellant, the magistrate first explored the possibility of putting the appellant on probation, thus obtaining a probation officer’s report.  The report, however, turned out to be unfavourable.  According to the probation officer, the appellant was unmotivated to consider any kind of drug withdrawal treatment programme.  She even did not attend interview with him on 3 occasions after being informed to do so by e-mail.  The appellant eventually called the probation officer to say that she refused to receive any drug withdrawal treatment programme.  The probation officer therefore did not recommend probation supervision for the appellant.

9.The magistrate then obtained a further probation officer’s report and a DATC suitability report.  According to the probation officer’s report, the appellant refused to undergo any voluntary residential drug withdrawal treatment programme despite intensive counselling by the officer.  She even accused the officer of bullying her by repeatedly suggesting to her to receive residential drug addiction treatment and threatened that she would ask for a change of officer in the next hearing.  In view of the poor insight of the appellant into her drug problem and her lack of sincerity in working out a concrete and feasible plan of rehabilitation, probation was not recommended.

10.The correctional service officer compiling the DATC suitability report pointed out that the appellant had been taking “ice” intensively since 2013 and did not stop even when she suffered from stimulant-induced psychosis and admitted to hospital as a result of the drug addiction.  She kept on taking ice after she was arrested and put on bail for the present offence and only stopped in early March 2017.  She considered the appellant suitable for admission to DATC.

11.During the appeal hearing, the appellant complains to the court that the probation officer did not understand her, bullied her and discriminated against her.  She also explains that she did not attend the interviews with the officer because she did not receive his e-mail. She argues that she has stopped taking any dangerous drugs since February 2017 and is able to get a job and rehabilitate with the support of her family in an open setting.  She asks to be released and put on probation.

12.The court finds that the appellant makes the complaint against the probation officer only because the officer has formed the view that probation is not suitable for her.  From reading the letters of the appellant which set out her grounds of appeal, the court comes to the same conclusion as the probation officer that the appellant has a poor insight into her drug problem.  Although the urine tests of the appellant show that she has really abstained from taking dangerous drugs since February 2017, the tests confirm the finding of the correctional service officer that the appellant had continued to consume dangerous drugs after she had been put on bail for the present offence.  This clearly shows that the appellant has not learnt a lesson despite being arrested.  The court is of the view that the focus of the sentence should be on the long term rehabilitation of the appellant instead of a short period of abstention form dangerous drugs.

13.Most of the views expressed by the probation officer were shared by the correctional service officer who pointed out in her report that the appellant had hardly showed any sense of remorse.  She even expressed the view that the appellant had behaved as if taking drug was not a crime.

14.No doubt, the root of the problem of the appellant was her drug addiction.  In the interests of the appellant and society, the sentence to be imposed should be one which will help the appellant get rid of her drug addiction.  The magistrate rightly came to the conclusion that the appellant should undergo a period of cure and rehabilitation in an addiction treatment centre.

15.There are ample authorities, notably HKSAR v Mok Cho Tik [2001] 1 HKC 261, saying that for the type of offence committed by the appellant, the starting point is in the range of 12 to 18 months imprisonment.  As such, an order of detention in the DATC is not out of proportion with the criminality of the appellant in the present case.  The court is of the view that the sentence is neither excessive nor wrong in principle.

CONCLUSION

16.Appeal against sentence is dismissed.

Mr Lenny Cheng, PP of Department of Justice, for the Respondent

The Appellant in person, present