The Queen v. Cheng Tak-kwong

CACC000513/1983

BETWEEN

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Coram: Hon. McMullin, V.-P. in court

Date: 1st July, 1983

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JUDGMENT

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McMullin, V.-P. :

1. The appellant pleaded guilty to two charges under the Dangerous Drugs Ordinance. He had been seen in the morning of the 1st December by several police officers in the.vicinity of Block 17 of Li Cheng Uk Estate. He was observed emerging from the female toilet near to Room 15 holding something in his left hand wrapped in newspaper. The police officers searched him and in his trousers pocket they found the drugs laid in the charges.

2. The magistrate made a Drug Addiction Treatment Centre order. It appears that the same magistrate had, shortly prior to that, dealt with the same defendant in respect of possession of dangerous drugs for the purpose of unlawful trafficking. In that case a sentence of 12 months' imprisonment had been passed on the dangerous drugs charge and also a concurrent sentence of three months in respect of obstructing a member of the Customs and Excise Services.  Those sentences were imposed on the 23rd February 1983. Although the defendant had appeared upon the present offences prior to that - in December 1982 - he had been admitted to bail and on the 7th February failed to appear for trial and a warrant for his arrest was issued.

3. The Drug Addiction Treatment Centre order was imposed on the 23rd March, following upon the production of the requisite reports and their scrutiny by the magistrate. Therefore in between that date and the date of his first appearance upon the present charges, the trial of the other case; No. 747, North Kowloon Magistracy 1983, had taken place with the result already indicated.

4. Mr. Peter Nguyen who appears for the appellant today drew my attention to the decision of Mr. Justice Silke in Yeung Tak shing, Criminal Appeal 217 of 1980 in which similar circumstances had been exposed to the court. Noting that the sentence to detention in the Drug Addiction Treatment Centre would in normal circumstances have been a proper sentence in respect to the case before him, the Judge went on to note that the circumstances were not normal, in that the appellant had earlier on the 25th of January 1980, been sentenced to a term of 18 months' imprisonment for possession of dangerous drugs for the purpose of unlawful trafficking. That had not appeared on the criminal record placed before the magistrate when he passed the DATC order on the 30th January, although he was aware of that order. The magistrate's order in that case was: "To Drug Addiction Treatment Centre insofar as it might not interfere with present sentence he is serving ' in K13372/79 - the 18 months' sentence." The practical effect, as the judge noted, would be that the period in the Treatment Centre would not start until after the appellant had been released on completion of the 18 months' sentence. He took the view that the imposition of a period of detention in the treatment centre starting over a year after the particular sentence imposed in the earlier case was wrong in principle. In the present case Mr. Fitzpatrick for the Crown very fairly acknowledges that the DATC order, was in the present case also, wrong in principle. I therefore will take the course which was taken by Mr. Justice Silke in Yeung Tak-shing, allow the appeal, quash the Drug Addiction Treatment Centre Order, and impose in lieu thereof such sentence of imprisonment as will result in the defendant's being discharged upon the completion. of the prison sentence presently being served by him in respect of the other case.

Representation:

Peter Nguyen (D.L.A.) assigned for Appellant.

David Fitzpatrick for Respondent/Crown.