Wu Ho Yin v. The Queen

Case No.CACC 751/1971

Court

Court of Appeal

Date01 Jan 1900

Judge—

Case Document

100%

CACC000751/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 751 OF 1971

-----------------

BETWEEN
	WU HO YIN	Appellant
	and
	THE QUEEN	Respondent

-----------------

Coram: Pickering, J.

Date of Judgment:

-----------------

JUDGMENT

-----------------

1. In the Statement of Findings the learned magistrate says that the appellant was convicted for possession of a dangerous drug, but in fact the charge was that of smoking a dangerous drug and it was for this offence that the appellant was convicted and sentenced to eight months' imprisonment.

2. The appellant was one of two persons found smoking a dangerous drug at Shek Kip Mei Resettlement Estate on the 12th August, 1971. The appellant's companion pleaded guilty and was conditionally discharged by a different learned magistrate. The appellant considers the two sentences are unduly disparate. I have today, in Criminal Appeal 750 of 1971, reduced a sentence imposed for a different type of offence upon this very ground of disparity. In that case, however, I had the advantage of knowing all the facts relating to both the accused persons and their offences whereas in this case I know nothing of the proceedings which led to the appellant's companion being conditionally discharged. In addition to that, the reason which the learned magistrate gives for the imposition of a sentence of eight months' imprisonment is a perfectly valid reason, that is, that such a term is necessary to give the appellant, who has twice been to a Drug Addiction Treatment Centre, some opportunity of riding himself of his drug addiction.

3. The appeal against sentence is dismissed.

4. In his Statement of Findings the learned magistrate says:-

"	In the instant case the defendant is 23 years old. He has had 3 previous convictions and has already been twice to a Drug Addiction Treatment Centre. Indeed he is still under Tai Lam Supervision. Notwithstanding this record and the present conviction and his admission to the Probation Officer that he has used drugs continuously since his last charge the medical certificate received from Dr. Gibbs is to the effect that defendant is not a drug dependant.
	I cannot help but record what must be an almost universal experience amongst Magistrates dealing with these cases - that these certificates are almost completely valueless and often actively misleading. After some days on remand a urine test cannot show traces of drugs. All that the Dr. can do is to ask defendant if he takes drugs and if the defendant denies it (as he is naturally tempted to do) unless there are special indications of addiction the certificate almost automatically states that there is no drug dependancy. Because of this, it is automatically said that the defendant is not suitable for admission to a Drug Addiction Treatment Centre.
	Yet time after time it is clearly evident to the Court that the defendant is in fact drug dependant, is in need of treatment. All that one can do in such circumstances is to sentence him to prison for a period in the hope that this will serve both as a suitable penalty and as a period of enforced abstinence.
	A somewhat similar situation arose in criminal appeal No. 520 of 1970 and I have kept in mind the remarks set out in that judgment. I am nevertheless bound to deal with the facts as I know them and the facts in this and other cases lead me irresistibly to the conclusion that the appropriate penalty was 9 months imprisonment. Having given credit for time spent in custody I imposed a sentence of 8 months.
	It would clearly be more helpful both to the defendant and to the Court if these medical tests could be made immediately upon arrest - though amending legislation would seem to be necessary if this were done."

5. I would say once that although the learned magistrate refers the situation in the present case as being similar to that in Criminal Appeal 520, it is in fact dissimilar. In the former case the appellant was sentenced upon the basis of the magistrate's personal opinion that he was addicted to drugs - an opinion which flew in the face of the only evidence (the medical evidence) available upon that question. In the present case the probation report before the learned magistrate put him in possession of the appellant's ready admission to the probation officer that since his release from a Drug Addiction Treatment Centre in February of this year, he has been using dangerous drugs continuously. In the face of that admission, despite the doctor's opinion upon such evidence as was available to him, the learned magistrate was perfectly justified in imposing the sentence which he did impose.

6. The suggestion that medical certificates in this type of case are often actively misleading is one which must be regarded with concern and I will cause the Registrar to seek the views of the Director of Medical and Health Services upon this matter.

Representation:

Appellant in person.

Winter, C.C. for Crown.