Lo Kwok Lin v. The Queen
Read the full judgment text of CACC 715/1980 on BabelCite. This Court of Appeal judgment.
1. The appellant appeals against an order made by the Learned Magistrate that he be detained in a Drug Addiction Treatment Centre under the Drug Addiction Treatment Centres Ordinance Cap. 244.
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CACC000715/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 715 OF 1980 -----------------
----------------- Coram: Garcia J. in Court Date of Judgment: 9th September 1980 ----------------- JUDGMENT ----------------- 1. The appellant appeals against an order made by the Learned Magistrate that he be detained in a Drug Addiction Treatment Centre under the Drug Addiction Treatment Centres Ordinance Cap. 244. 2. The appellant was arrested on the 14th of April 1980 and charged with an offence against the Dangerous Drugs Ordinance, Cap. 134, one packet containing 0.09 gramme of a mixture containing 0.02 gramme of salts of esters of morphine having been found from him. He appeared before a magistrate the following day and was granted bail in the sum of $300 conditioned for him to appear in the same court on the 19th of April 1980. He did not appear on that day and his bail was accordingly estreated and a warrant was issued for his arrest. On the 14th of July 1980 he was brought before the Learned Magistrate in North Kowloon Magistracy on the warrant of arrest and the case was adjourned to the following day for the charge to be amended. The appellant then pleaded guilty to the amended charge. He was then remanded 7 days in custody for a report to be furnished as to his suitability for detention in a Drug Addiction Treatment Centre. Between the date of his appearance in court on the 15th of April 1980 and his arrest on warrant on the 14th of July 1980, it is apparent from what the appellant admitted to the Intake Officer, that he committed an offence of theft for which he was sentenced to a term of one year's imprisonment from the 1st of May 1980. The appellant has a record of 10 previous convictions in all, and he has been, since 1971, to the Drug Addiction Treatment Centre on 3 occasions; the first on the 30th of April 1971, the second on the 17th of May 1972, and the third on the 12th of September 1972. Thereafter, he was convicted, amongst other offences, of possession of dangerous drugs and possession of instrument fit and intended for injecting dangerous drugs, in 1975 and in 1977, for which offences he was sentenced to various terms of imprisonment but no orders were made for him to be sent to the Drug Addiction Treatment Centre. The Intake Report which was called for by the Learned Magistrate indicated that the appellant had been addicted to drugs for the past 10 years and that the medical officer who had examined him on this occasion was of the opinion that the appellant is a drug dependant. The Remand Selection Board therefore recommended that he be admitted to a Drug Addiction Treatment Centre in order that a period of treatment "may shake him up and help him to get rid of his bad habit". The Learned Magistrate on receiving that report remanded the appellant for 2 days to consider the appropriate course of action to take and also to ascertain when the term of imprisonment which the appellant was then serving would expire. On the 25th of July it was ascertained that the appellant could be discharged on the 21st of December 1980, and having regard to the fact that he was sentenced to a term of one year's imprisonment on the 1st of May 1980, the discharge date would have taken into account the remission which would, in the ordinary course of events, be earned by the appellant in the course of that sentence. The Learned Magistrate then ordered that the appellant be detained in a Drug Addiction Treatment Centre on 25th July 1980 and that such order should run concurrently with the sentence of imprisonment which the appellant was then serving. However, on the 26th of July 1980 the Commissioner of Prisons drew the Learned Magistrate's attention to Section 6A(a) of the Drug Addiction Treatment Centres Ordinance Cap. 244, and he accordingly reviewed his original order and substituted for that order, the order which the appellant now appeals against, that is that he be detained in a Drug Addiction Treatment Centre following the expiry of his prison sentence. Section 6A(a) of the ordinance reads as follows :-
The Learned Magistrate, I think quite rightly, came to the conclusion that under the Ordinance he could not have made the order which he made on the 25th of July 1980. There are, however, no provisions in the said Ordinance for an order to be made thereunder which could be postponed until after a sentence of imprisonment is served by a person against whom such an order is made. 3. The relevant section of the Ordinance under which such detention orders are made reads as follows :-
In my view, the words used in that section, i.e. "the circumstances of the case" refer to circumstances existing at the time of or immediately before the making of such an order because the court could not be satisfied with circumstances in the future which might occur after the expiration of a sentence of imprisonment served for another offence. For instance, the Learned Magistrate was not, nor could he have been in a position to know whether after the expiration of that term of imprisonment, the appellant would still be a drug dependant or that his circumstances would be such as to make that order superfluous or unsuitable. In fact, the magistrate could not have been satisfied that it was expedient that such an order ought to have been made that day otherwise he would not have had to postpone the application of that order. 4. In the result, I allow this appeal and revoke the order made by the Learned Magistrate under the Drug Addiction Treatment Centres Ordinance, and substitute therefor a sentence of 3 months imprisonment which the appellant will serve consecutively to the sentence he is now serving.
Representation: Appellant in person I. G. Cross, Crown Counsel, for respondent |
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