The Queen v. Ma Chan-ting

HCMA000994/1985

HEADNOTE

Appeal against Drug Addiction Treatment Centre order - effect of Section 6A of the Drug Addiction Treatment Centres Ordinance, Cap. 244 - appellant no longer addicted after service of prison sentence - order quashed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 994 of 1985

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of Hearing: 2nd and 23rd December, 1985

Date of Judgment: 23rd December, 1985

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JUDGMENT

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1. This appeal has a complicated background. On 20th October, 1982, the appellant was convicted of possession of dangerous drugs by Mr. Kenney, and was sentenced to three months imprisonment, suspended for two years (SPK 20098/82). On 13th September, 1984, he was convicted of the same offence by Mr. Eaton, who ordered that the suspended sentence take effect unaltered and also imposed a Drug Addiction Treatment Centre Order, to run consecutively to the prison sentence (SPK 18921/84).

2. On 22nd October, 1984 - just over one month later - the appellant was convicted of trafficking in dangerous drugs by Mr. Muttrie and was sentenced to two years imprisonment, the sentence to run concurrently with that in SPK 18921/84.

3. It is against this sentence that the appellant now appeals. It transpires, however, that his main complaint is directed, not at this sentence, but at the prospective activation of the DATC Order.

4. Section 6A of the Drug Addiction Treatment Centres Ordinance, Cap. 244, provides:-

"If a person in respect of whom a detention order, a supervision order or a recall order is in force is sentenced to imprisonment -

5. Prior to sentence, the appellant told Mr. Muttrie that he wanted to go to the DATC to get rid of his habit. When passing sentence, the magistrate said, "By Section 6A of the .... Ordinance the effect will be that the defendant serves a total of 2 years in prison and then goes to DATC".

6. The appellant appealed at once against Mr. Muttrie's sentence. But in his statement of findings, the magistrate said that he had sentenced the appellant to two years imprisonment, consecutive to the sentence of three months imprisonment then being served. He noted that the provisions of section 6A(b) would apply and the DATC Order would not take effect. On the strength of this, the appellant withdrew his appeal.

7. In 1985, the appellant applied to Mr. Muttrie for leave to appeal out of time. He had presumably been advised by the Correctional Services Department that the DATC Order would take effect after all. On 6th November, 1985, Mr. Muttrie granted this application, acknowledging that he had been in error in his previous statement of findings, when he stated that the sentences were to be consecutive.

8. When the appeal came on before me, on 2nd December, it readily became apparent that it was the DATC Order to which the appellant objected, and not the sentence of two years. At the request of counsel for the Crown, the matter was adjourned to enable the appellant to seek leave to appeal out of time against the DATC Order imposed by Mr. Eaton in September, 1984.

9. Leave was refused by Mr. Eaton, on the grounds, first, that the order was just and reasonable and not made in error, and, second, that the appellant, having already served 38 days of the three months sentence by the time the sentence of two years imprisonment was imposed, section 6A(b) of the ordinance came into play, thereby nullifying the effect of the DATC Order.

10. While appreciating that the latter may have been a proper order - although there is authority to the contrary, see YEUNG Tak-sing v. The Crown (Criminal Appeal No.217/1980) - the magistrate is not correct when he says that section 6A(b) comes into play by virtue of the fact that the appellant had served 38 days in prison. The section clearly states that this is only the case where a person is sentenced to a term of more than two years.

11. Counsel for the Crown has ascertained from the Commissioner of Correctional Services that the appellant is no longer addicted and is not suitable for the DATC. It would be unjust and wrong, therefore, to allow the present order to stand. I give leave to appeal out of time against the sentence in SPK 18921/84, allow the appeal in part and quash the DATC Order.

12. The appeal in SPK 21997/84 is dismissed.

Representation:

Mr. P.J. Dale, Senior Crown Counsel for Respondent

Appellant MA Chan-ting in person