Leung Kam Kwong v. The Queen

HCMA001041/1987

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION )

MAGISTRACY APPEAL NO. 1041 OF 1987

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BETWEEN

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Coram: de Basto, J.

Date of Hearing: 12th January, 1988.

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J U D G M E N T

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1. The Appellant pleaded guilty to a charge of Common Assault and was ordered to be detained in a Drug Addiction Treatment Centre. He now appeals against his sentence.

2. Counsel for the Crown contended that a sentence of detention in an addiction centre is not a custodial sentence and such order was properly made as the Appellant is a drug addict. I disagree.

3. In TSE Mui v. The Queen, Criminal Appeal No. 229 of 1972, the accused had pleaded guilty to aiding and abetting the keeping of an unlicensed massage establishment. The maximum penalty for that offence was a fine of $1,000 or six months' imprisonment. There was evidence she was a drug abuser although expert evidence indicated she would not gain any benefit from Drug Addiction Treatment Centre sentence and she also asserted she was not interested in such treatment. Sir No Rigby, C.J. said :

" 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...............

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. "

4. In my view, the sentence is wrong in principle and manifestly excessive. The assault consisted of one punch which caused only superficial abrasions. A custodial sentence is not at all appropriate in a simple assault as in this case. I allow the appeal, quash the sentence and substitute a sentence which will result in the Appellant's immediate release. The Appellant has already spent three months in prison.

Representation:

Mr C. Harris, Crown Counsel for Crown.

Appellant in person.