HKSAR v. Chan Kwok Leung

HCMA 1139/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1139 OF 2004

(ON APPEAL FROM NKCC 8365 of 2004)

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BETWEEN

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Coram: Deputy High Court Judge Wright in Court

Date of Hearing: 25 January 2005

Date of Judgment: 25 January 2005

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J U D G M E N T

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1.The appellant in this matter was convicted, on his own plea, of a single charge of possession of dangerous drugs, namely 12 tablets containing 0.15 gms of midazolam.

2.At the time he committed this offence, 2 August 2004, he already had 36 previous convictions of which five related to the possession of dangerous drugs.  He had been committed to Drug Addiction Treatment Centre in 1995 and again in 1997.  After those periods of detention he committed several further drugs offences as well as a substantial number of what appear to be petty thefts. 

3.The magistrate, as he was obliged to do, called for a report on the suitability of the appellant for further admission to Drug Addiction Treatment Centre.  He was found to be suitable.  The magistrate made such an order.  It is against that order that the appellant appeals.

4.The appellant had been sentenced on10 August 2004 to serve a period of four months imprisonment in respect of an offence of theft.  Whilst he was serving that sentence he was charged with the present drugs offence.  It follows that this is not a situation where the two sentences could have been imposed at the same time.  The appellant finished serving that sentence on 29 October 2004.  In theory, he was a free man but he already had been remanded in custody for the preparation of a Drug Addiction Treatment Centre Report.  Consequently, he continued to be remanded in custody but not serving any sentence.  The magistrate made the order on 4 November 2004.

5.The appellant contends that the period of detention consequent upon the order is manifestly excessive and that it is wrong in principle to commit to Drug Addiction Treatment Centre a person who says he will not benefit from that committal where the period of incarceration in Drug Addiction Treatment Centre is longer than another custodial sentence would be in the same circumstances.

6.Committal to Drug Addiction Treatment Centre is a provision specifically designed to assist in the rehabilitation of those who are drug dependant.  The appellant says that he has not been helped by his two previous admissions and believes he will not be helped by a third admission.  I find wholly unrealistic any suggestion that a prisoner is able to dictate his sentence by such observations.

7.I have been referred to authorities in which, where a similar attitude has been adopted by a prisoner, a court on appeal has set aside a Drug Addiction Treatment Centre order.  I have been referred to authorities where a court has declined to make such an order despite a prisoner being suitable for admission.  I have been referred to authorities where custodial sentences have been set aside and Drug Addiction Treatment Centre orders substituted for them.  Each of those matters was decided upon its own facts. They are unhelpful. 

8.The order which the Magistrate made is entirely appropriate in the circumstances of this offence and this offender.  I confirm the Magistrate’s order and the appeal is dismissed.

Ms Louisa Lai, SADPP for DPP/HKSAR, for the Respondent

Mr Wilson Chan instructed by Legal Aid Department, for the Appellant