The Queen v. Tam Kam Shing

CACC000909/1983

BETWEEN

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Coram: Jones J.

Date: 27th July, 1983.

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JUDGMENT

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1. On the 14th May 1983 the appellant was convicted at the North Kowloon Magistracy of one charge of possession of apparatus fit and intended for injection of a dangerous drug contrary to Section 36(1) of the Dangerous Drugs Ordinance Cap. 134, and was sentenced to 9 months' imprisonment.

2. He appeals against his sentence.

3. The learned magistrate in his Statement of Findings agrees that the sentence should not have been imposed for he did not obtain a report from the Commissioner of Correctional Services under Section 54A of the Dangerous Drugs Ordinance to determine whether the appellant is suitable for admission to a Drug Addiction Treatment Centre.

4. The learned magistrate considers that he is functus officio, and suggests that a report be obtained by the High Court and that the appeal be heard on its merits. However, it is not the function of the High Court to relieve a magistrate of his responsibilities for his omission.

5. The case is remitted to the learned magistrate pursuant to Section 119(1)(d) of the Magistrates Ordinance with a direction that he deals with the matter of sentence de novo after he has obtained a report from the Commissioner of Correctional Services. In the meantime, the sentence of 9 months' imprisonment is set aside.

Representation:

Appellant in person.

Mr. B.M. Ryan (Legal Department) for Crown/Respondent.