HKSAR v. Barbosa Nunez Cristian

HCMA 310/2020

[2021] HKCFI 1041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 310 OF 2020

(ON APPEAL FROM KCCC 1507 OF 2020)

__________________________

__________________________

_______________

J U D G M E N T

_______________

1.The Appellant was charged of one count of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. He pleaded guilty and admitted the facts and he was convicted. The learned Magistrate called for Drug Addiction Treatment Centre (“DATC”) report, he was found suitable for DATC and that he was sentenced to a Drug Addiction Treatment Centre.

2.The Appellant was unhappy about being sentenced to a Drug Addiction Treatment Centre and thus he appealed. 

3.The facts were very simple.  The Appellant was stopped and search in Temple Street, inside a cigarette box found on him was a plastic bag containing heroin.  The Appellant is aged 39, is married and he had registered for methadone treatment in 2017.  He had urged the Court to consider probation for him.  He had 16 previous convictions, 4 which were drug related and the rest for offences of dishonesty. A very, very poor records in relation to a 39-year-old man. 

4.Because he disputed the contents of the DATC report, the learned Magistrate, very fairly, then allowed the assessment officer who prepared the report to be called.  From the transcript, the first officer who was called, gave evidence and said that the information that was provided was accurate which was given to him after his interview with the Appellant.    

5.The Appellant was given ample opportunity to cross-examine this officer.  The assessment officer also had the opportunity to question the Appellant’s wife. She told the assessment officer that the Appellant took dangerous drug as a painkiller and she supported a DATC order against the Appellant.  Of course, in Court, the Appellant accused the assessment officer of falsifying his drug problem to his wife, which was denied by the assessment officer. 

6.The Appellant also questioned about the urine specimen.  It was mentioned in Court that the urine specimen was collected from him on 28 August 2020 and it was found positive for amphetamine. The medical officer also testified that during his interview with the Appellant, the Appellant had told him that he had abused heroin for over 10 years.  And apart from heroin, the Appellant also abused ice.  So the medical officer, after considering all the information, then considered that the Appellant was suitable for admission to a Drug Addiction Treatment Centre. 

7.The fact that the Appellant disputed the evidence of the officers caused the learned Magistrate to consider the background of the Appellant, particularly his conviction in 1997, 2000 and 2008 which was consistent to the admission he gave to the assessment officer that his addiction history was over 10 years.  The learned Magistrate made all these fact findings at paragraphs 12 and 13, and she came to the conclusion that the Appellant lacked insight into his own problem and he could not abstain from dangerous drugs when allowed in the community. So considering the fact that he was supposedly on voluntary methadone treatment, however he still was arrested for this present offence, for possession of heroin.  The learned Magistrate was of the view that for the Appellant’s own good and drug rehabilitation, he should be sentenced to a Drug Addiction Treatment Centre, and so sentenced him to one accordingly. 

8.The Appellant again on appeal, challenged the DATC report, and also complained that he was not given legal aid.  He also submitted that he disputed the chain of evidence, and he then handed to this Court a document of a copy of his last urine report, in which he said there is a date at the bottom which seems to refer to his previous offence in 2008, and so he alleged that this urine report is a fabrication. However, that allegation was never made in the Magistrate’s Court.  All he said was that he was in custody for 2 days before a urine sample was taken from him, so the medication or drug that was found in his urine may have been caused by what he had been given during the 2 days of custody. 

9.As for not being given a lawyer by Legal Aid, the Legal Aid Department has the discretion not to give legal representation at their own discretion.  So this is not a valid ground of appeal.  As I have said the Appellant had been given ample opportunity to challenge the DATC report, the two writers of the report were called, and the Appellant was given free rein to cross-examine those officers, and the learned Magistrate was left with the conclusion in her Reasons for Sentence that the two officers were truthful witnesses. 

10.I find no ground whatsoever to disturb the sentence on the ground that it was manifestly excessive or wrong in principle. So the appeal is dismissed.         

Mr Douglas Lau, PP of the Department of Justice, for the Respondent

The Appellant acting in person