HKSAR v. Lau Wai Mei

HCMA 1014/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1014 OF 2004

(ON APPEAL FROM NKCC 4952/2003)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Dates of Hearing: 23 December 2004 & 7 January 2005

Date of Judgment: 7 January 2005

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J U D G M E N T

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1.The Appellant had appeared in the Magistrate Court charged with one charge of Possession of a Dangerous Drug.  She was convicted and sentenced to probation for 18 months.

2.During this time, the Probation service then asked the Court subsequently to discharge to the probation because of the Appellant’s various breaches of the probation conditions.  Having looked at the Progress Report it was apparent to the Magistrate that the Appellant was still taking some form of drug because the urine sample had positive reaction to methamphetamine/amphetamine.  She had also failed to observe home curfew.  So the learned Magistrate upon receipt of the further probation report then decided that the sentence to a Rehabilitation Centres was more appropriate because he did not consider that a short term custodial sentence was sufficient to help the Appellant.  So at the end of the day after calling for further reports, the learned Magistrate then sentenced the Appellant to a training centre.

3.The Appellant now appeals against that sentence on the ground that it is manifestly excessive.

4.The drug for which the Appellant had been convicted was namely a packet containing 0.7 gramme of a powder containing 0.48 gramme of Ketamine.  Without doubt, this is becoming quite a popular drug and the original sentence of probation was appropriate in the circumstances but due to the Appellant’s own conduct she had been denied the chance of rehabilitating herself outside.  She had been remanded for a number of weeks for further reports and I do not think the Appellant can blame anybody but herself.

5.At the appeal this morning, Miss Ng on behalf of the Respondent have very correctly considered that the sentence of training centre is manifestly excessive.  Both counsel agreed that in the interests of the Defendant and for Hong Kong as a whole that the appropriate sentence in this case should be of one to a rehabilitation centre.  As it has been correctly pointed out by counsel, the Appellant fitted the criteria as set out in the Rehabilitation Centre Ordinance, Cap 5, 6, 7, Section 4, sub-section 2.  So the only thing remain is for me to order a report from the rehabilitation centre as to the suitability of the Appellant for admission there.  So under those circumstances, I agree with counsel that the sentence is manifestly excessive and in the circumstances of this case, so the appeal is allowed the sentence to a training centre is set aside.

6.I order now a Rehabilitation Centre Report and the sentence is adjourned for two weeks to 7 January at 9:30 am, Court 26 for a Rehabilitation Centre Report.

Ms Laura Ng, GC, of Department of Justice, for the Respondent

Mr Nicholas Y K Lau, instructed by Messrs Paul Kwong & Co., for the Appellant