The Queen v. Leung Kam Fai

CACC000352/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: McMullin, V.-P., Silke & Kempster, JJ.A.

Date of Hearing: 29th October 1985

Date of Judgment: 29th October 1985

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JUDGMENT

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Silke, J.A.:

1. The Applicant, LEUNG Kam-fai, pleaded guilty to two offences: the first being a burglary on the 1st day of March 1984 and the second being an assault with intent to rob on the 7th of May 1985. The District Judge passed a sentence of 1 year's imprisonment in respect of burglary and 5 years' imprisonment in respect of the assault with intent to rob, to run consecutively, giving a total of 6 years. The Applicant is aged 20.

2. Before passing that sentence the Trial Judge obtained reports from the Commissioner of Correctional Services in relation to Training Centre, Detention Centre and Drug Addiction Treatment Centre. He also had a report from the Director of Social Welfare as to the general background of the Applicant.

3. The burglary was a simple one. The Defendant entering a house while the victim was in the bathroom, took money out of his wallet and left. The assault with intent to rob was some more serious. He approached a woman on a staircase and he was carrying a knife. He threatened her. Upon hearing some other person coming up the stairs the woman pushed away the knife and ran away.

4. He had a previous record: taking away a conveyance without authority in 1979 for which he was placed to probation and a minor assault in 1981 for which he was fined $100. He breached the Probation Order and was sent to a Detention Centre. In October 1982 he was convicted of the possession of dangerous drugs and possession of apparatus fit for injecting drugs. The sentence then passed upon him, and he was not properly sentenced, was a discharge. Certainly with the benefit of hindsight, it would appear that the proper sentence at that time should have been a Drug Addiction Treatment Centre Order.

5. The Applicant has now served a period of approximately six months' in prison. He knows what prison is like. We do not seek to criticise the sentence passed by the Trial Judge but in the light of the general circumstances of the applicant's knowledge of the effect of imprisonment, we think that society may be best protected by the making of an order that he be sent to a Drug Addiction Treatment Centre so that he can be cured of the addiction which leads him to commit offences.

6. We would therefore grant the application treat the application as the hearing of the appeal and allow the appeal. The sentences of 1 year and 5 years will be set aside and there will be substituted therefore a Drug Addiction Treatment Centre Order to take effect from today.

Representation:

Applicant in person.

I. G. Cross, Esq. for Crown/Respondent.