Ng Sik Bun v. The Queen
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CACC000214/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 214 OF 1969 -----------------
Coram: Huggins, J. Date of Judgment: 28 April 1969 ----------------- JUDGMENT ----------------- Huggins, J: 1. The appellant appeals against the sentence passed upon him for the offence of larceny by a servant. The sentence was one of detention in a Drug Addiction Treatment Centre. 2. The appellant was employed by his father in a factory. He was seen by the police acting in a furtive manner and when questioned admitted that he had stolen 10 gross of copper buttons from the factory. Contact was made with the father of the appellant and the police told the magistrate that the father insisted on a charge's being laid. Before the magistrate the father said that the appellant was a drug addict and he asked that the appellant be sent to a Treatment Centre. The appellant has sought to persuade me that the goods were wrongly described in the charge and that the 10 gross of copper buttons were in fact nothing but scrap metal. He never said anything of this kind before the magistrate. He has also alleged that he was not an addict at all. Under the Drug Addiction Treatment Centres Ordinance a detention order may be made where a person is found guilty of a relevant offence - of which this was one - and the court is satisfied that in the circumstances and having regard to his character and previous conduct it is in the interest of the public and of the accused that he should undergo treatment. 3. The first remark I would make as to that is that clearly the magistrate must act upon evidence. The question is What evidence is required? The magistrate here came to the conclusion that a detention order was probably appropriate when there was no information before him other than the statement of the father and the document which is headed 'Brief Facts of Case'. There is a footnote to that document which contains, inter alia, a statement that the defendant is a drug addict. When I first saw this document I was not very clear just how that footnote came to be there. It appears below the signature of the police officer who presumably was in charge of the case and above the initials of the learned magistrate. It appeared at first sight that this footnote was something added by the magistrate. However, I have seen the original of the document and I think it is clear that the magistrate's initials were added merely by way of identification of the document as a whole and the footnote appears to be something in the nature of a postscript to the Brief Facts of Case. This is material because the prosecutor submitted the document 'Brief Facts of Case' and it was read to the appellant. When asked whether he admitted those facts he said that he did. It would, therefore, appear that when this document was read this footnote was already there and therefore it is a note which was admitted by the appellant. Thereafter the magistrate in accordance with s.4(3) of the Ordinance asked for a report from the Commissioner of Prisons as to the suitability of the appellant for treatment. It appears that a report was made, although for some reason which I do not understand the report does not appear in the record on this appeal: the certifying officer seems not to have taken any great care to ensure that the record was complete. The report is in these terms:-
In my view, and counsel for the Crown was not disposed to argue to the contrary, it would not have been sufficient merely to act upon a report from the Commissioner of Prisons that the appellant was "suitable for treatment", although it would be arguable that he could not be suitable for treatment unless he was in fact an addict. Nevertheless this is such an important matter that I think it should not be left to an inference and there should be clear evidence of addiction in these cases. 4. In this present case I think the evidence was sufficient. The appellant admitted the facts as set out in the document I have referred to and when his father said in open court that his son was a drug addict the appellant raised no objection. That being so I think there was evidence upon which the learned magistrate could properly proceed and I have no doubt at all that the conclusion which he reached was the right conclusion. The appeal is dismissed. 28th April, 1969. |