The Queen v. Cheung Cheuk Pang

HCMA000136/1991

IN THE SUPREME COURT OF HOAG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.121 & 136 of 1991

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 11 April 1991

Date of Delivery of Judgement: 11 April 1991

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JUDGMENT

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1. In Appeal No.121 of 1991, the appellant was originally charged with the offence of possession of the dangerous drugs for the purpose of unlawful trafficking, but the conviction was recorded in respect of the lesser offence as a result of the appellant's having rebutted the presumption

2. The learned magistrate in that case called for a Drug Addiction Treatment Centre Report. Although, that report said that the appellant was evitable for detention in a Drug Addiction Treatment Centre, the appellant who has a long history of convictions for offences in respect of dangerous drugs, showed a definite reluctance to accept the treatment offered by the Drug Addiction Treatment Center. He has been sentences to the Centre before, and the report from the Centre revealed that he still has no insight into his drug addiction problem.

3. The learner magistrate, after considering the report, case to the conclusion that since there were a number of factors, in particular, no personal motivation for the appellant to be rid of his addiction and ills vigorous opposition to treatment at the Centre, came to the conclusion that a Drug Addiction Treatment Centre order was not appropriate in this case. He, therefore, decided to sentence him in line with the guidelines in Chan Tak Ming (Application for Review 21 of 1988). He adopted the upper end of the range recommended in that case and sentenced the appellant to imprisonment for 9 months.

4. In Appeal No.136 of 1991, the appellant was convicted of two offences, one of possession of a dangerous drug, and the other of possession of apparatus fit and intended for injecting a dangerous drug.

5. These offences were committed on 13th October 1990, during a period when he was on bail after having been charged with the offence dealt with in Appeal No.121 of 1991. It so happened that tie was dealt with on the same day for the offences in Appeal No.136 of 1991, and the offence the subject of Appeal No.121 of 1991. But a different magistrate dealt with the cases.

6. The magistrate who dealt with the case in Appeal No.136 of 1991 was aware that there was a Drug Addiction Treatament Centre Suitability Report prepared in respect of the appellant and was also aware that, although that report said that tile appellant was suitably for such detention the magistrate in tile other case had decided not to send him to a Treatment Centre. The learned magistrate thus felt himself constrained to impose a prison sentence in this case as well

7. On the face of it, there is nothing wrong in principle with tile sentences which tile learned magistrate imposed in this case. However. I think, as has been pointed out quite fairly by Mr. Bailey, who represented the respondent, that if both cases had peen dealt with by the same magistrate at the same time, it is unlikely that he would have imposed sentences at the upper end of the range, even though the second series were committed whilst he was on bail. I think that, had be been dealt with on the same day by the same magistrate, the totality of the sentences would not have been 18 months imprisonment.

8. He is a man, as 2 said earlier, with a long history of drug convictions. It is very difficult to know what to do with a man with his record and his attitude towards iris problem. But the social need seems to be not so much to punisn him but to Keep him away from drug cons consumption for such a period as will be beneficial to him.

9. I, therefore, allow his appeal in Case No.136 of 1991 to the extent that the sentence on the (a) charge will be reduced to imprisonment for 4 months. His appeal is allowed to that extent.

Representation:

Mr. S.R. Bailey S.C.C. for Crown

Appellant: Cheung Cheuk Pang in person