Poon Wah v. The Queen

CACC001118/1978

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1118 OF 1978

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Coram: Addison, J.

Date of Judgment: 1st December, 1978.

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JUDGMENT

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1. This is an appeal against an order made on the 24th October, 1978 by the learned magistrate sitting at North Kowloon Magistracy whereby he ordered the appellant to be detained in a drug addiction treatment centre. The order was made under section 4 of the Drug Addiction Treatment Centres Ordinance, Cap. 244.

2. The appellant was charged with an offence contrary to section 36(1) of the Dangerous Drugs Ordinance, the statement of the offence being in these words:

"Possession of an Instrument fit for smoking Dangerous Drugs."

The particulars of the offence specified possession by the appellant of:

"a tinfoil containing suspected traces of dangerous drugs and one pink tissue paper fit and intended for smoking of a dangerous drug, namely salts of esters of morphine."

In fact section 36(1) makes no reference to the word 'instrument'. That section reads:

"Save under and in accordance with this Ordinance, no person shall have in his possession any pipe, equipment or apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous drug."

The tinfoil was obviously 'equipment' fit and intended for the smoking, inhalation or ingestion of a dangerous drug and in my opinion the statement of offence should have used the 'equipment' and not 'instrument'.

3. There is no appeal against conviction and consequently it is unnecessary for me to advert further on this matter save to advise those responsible for drawing charges to ensure the language of the Ordinance is followed as closely as possible.

4. The facts of the case were simple. Police officers went to a divan and found the appellant inside with the equipment previously described. The appellant pleaded guilty. He has no fewer than twenty-four previous convictions for dangerous drug offences. His first conviction was in 1952 and his last, prior to the commission of this offence, was on the 2nd September, 1977 when he was convicted of possession of instruments for the purpose of smoking dangerous drugs and was fined $500 or one month's imprisonment. For the majority of his previous convictions, he was sentenced to imprisonment.

5. As the learned magistrate remarked, he had never been given a chance to rid himself of his addiction by being detained for treatment. He added:

"Despite his age, the Commissioner of Prisons thought he was a suitable candidate for admission. In those circumstances I really thought that I should order him to be sent for treatment, as being by far the best way of dealing with him."

6. At the hearing of this appeal, the appellant has informed the court that he has been smoking dangerous drugs since 1932 and he would like to go to Shek Kuo Chau. In my opinion, he was very fortunate that the magistrate decided to send him to the drug addiction treatment centre. This appeal against sentence is frivolous and is dismissed.

Representation: