Tse Mui v. The Queen

CACC000229/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 299 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 3rd May 1972

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JUDGMENT

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1. The appellant who is a female 25 years of age, pleaded guilty to the charge preferred against her of aiding and abetting the keeping of an unlicensed massage establishment. The maximum penalty for an offence under that section is a fine of $1,000 or six months' imprisonment.

2. The case came before the magistrate on the 29th of January. The appellant has one previous conviction for smoking dangerous drugs in respect of which on the 13th of May 1970, she was sent to a drug addiction treatment centre. The magistrate remanded the present case until the 4th of February for a report as to whether she was still addicted to dangerous drugs and the question as to whether she could be recalled to the drug addiction treatment centre.

3. On the 4th of February when the case came before him the magistrate, for some reason which is certainly not disclosed on the record, adjourned the case to the 11th of February for sentence, meanwhile remanding the appellant in prison custody.

4. On the 11th of February when the case was again before him the magistrate adjourned the case in order that there might be a report from two psychiatrists as to the mental condition of the appellant, and in the meantime she was remanded to Castle Peak Mental Hospital. Then the case again came before him on the 25th of February. The magistrate again adjourned the case until the 28th of February and meanwhile ordered the appellant to be remanded this time in prison custody. Again, the reason for this further adjournment is not shown on the record.

5. When the case came before him on the 28th of February the magistrate, having then before him the two reports from the psychiatrists, ordered that the appellant be sent to a drug addiction treatment centre. The report of one of the psychiatrists states that the appellant is of a psychopathic personality, and although she had undoubtedly been - and apparently still was - a drug addict he expressed the view that she was unlikely to benefit from treatment in a drug addiction treatment centre where she had already been given a chance. There was, it is true, a report from the Commissioner of Prisons saying that although the appellant had previously been detained in a drug addiction treatment centre and was not subject to be recalled, nevertheless, he would be prepared to take her back again.

6. Crown counsel, to whom I am indebted in this matter, has pointed out that of course detention under a drug addiction treatment centre is a custodial sentence and it is not normal in offences of this nature to order a custodial sentence. He has further pointed out that the appellant has given every indication that she is not likely to respond to further treatment in a drug addiction treatment centre and has again made that clear in this court. I have no doubt that the learned magistrate in making this order was primarily concerned in doing what he considered best for the appellant and to give her a further opportunity, if she so wished, to be cured of her drug addiction.

7. I would only say that the mental psychiatrist, as I have said, has indicated that he does not think she is likely to respond to any further treatment and that she herself has intimated to this court that she is not interested in such further treatment.

8. In all the circumstances of the case I think that it would, therefore, be wrong to make what is in effect a custodial order on a charge of this nature in respect of a drug addict who has clearly indicated that she herself is not interested in rehabilitation. The sentence imposed must be one which is appropriate to the particular offence committed.

9. In these circumstances I am satisfied that this appeal must be allowed, the order for detention in a drug addiction treatment centre is set aside and in lieu thereof a fine of $100 will be imposed and in default of payment the appellant go to prison for one month. The appellant may have fourteen days to pay the fine.

Representation:

(Judgment delivered)

Appellant in person.

Duckett, S.C.C. for Crown/Respondent.