HKSAR v. Ledesma Jose Rizaldo R

HCMA5/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 5 OF 2011

(ON APPEAL FROM ESCC 4395 AND 3826 OF 2010)

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BETWEEN

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Before : Hon Tong J in Court

Date of Hearing : 11 January 2011

Date of Judgment : 11 January 2011

Date of Reasons for Judgment : 7 March 2011

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J U D G M E N T

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Background

1.The appellant had pleaded guilty to one count of assaulting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap. 232.

2.The Brief Facts, admitted by the appellant, stated that, he had assaulted a police officer who had been called to the scene where the appellant had caused disturbance by having arguments with a friend in the street.  However, the appellant had tried to leave the scene and in the course, he had pushed and attempted to strike the officer.  After his arrest, it was discovered that the appellant was on police bail for a drug offence.

3.The appellant had, on 17 November 2010, pleaded guilty to these two offences, i.e. the dangerous drugs charge (arrested on 13 August 2010), and the assault police officer charge (arrested on 8 September 2010).  In fact, on 3 November 2010, he had pleaded guilty to another offence of assaulting his wife.  For such an offence he was sentenced to 4 months’ imprisonment.  Hence, when the appellant appeared before the magistrate for the drug and assault officer cases, he was already serving a term of imprisonment.

4.The magistrate had first called for a drug addiction treatment report, obviously due to the drug offence.  The reporting officer stated that the appellant was a drug dependant and was considered suitable for treatment.  In his mitigation, however, the appellant asked the court not to send him for treatment, and “preferred” a term of imprisonment instead, otherwise he would have to serve the imprisonment and treatment programme one after another.

The sentence imposed by the magistrate

5.In assessing the final sentence, the magistrate said she had considered the issue of totality, but she took the view that serving a term of imprisonment and then receive treatment would not be excessive or unfair to the appellant.  The magistrate further pointed out in her “Statement of Findings” that (paras 6 and 7) :

“6. This is a man with a drug addiction problem and a violent temper. They possibly may be related. In addition, many of his previous convictions relating to dishonesty came from his need to fund his drug habit. The last paragraph of the report concluded that he is a drug dependant and ‘in view of his weak will-power, the availability of a place in the Drug Addiction treatment Centre and taking into consideration that drug abuse is his imminent problem, another period of compulsory drug addiction treatment coupled with intensive supervision would still be beneficial to him.’

7. I am sure his drug addiction is his primary and immediate problem. He requires treatment and prison will not provide any drug addiction treatment. He requires a cure derived from intensive and relevant treatment that only DATC can provide. The drug involved was Ice, a highly addictive dangerous drug that explains his predicament. It is in his interest and the public’s interest he should undergo a period of care and rehabilitation. The assault on the police officer was not a serious assault and I may not have imposed a DATC order for that offence alone. However I was dealing with the sentences of 2 different offences at the same time and I followed the recommendation of the report. I sentenced him to Drug Addiction Treatment Centre for both offences and ordered them to be served concurrently. He now appeals this sentence.” (my emphasis)

Grounds of appeal

6.Counsel for the appellant, Ms Sim, argued that the sentence was basically wrong in principle.  She had cited a number of cases to support this contention.

7.The respondent, in her written submissions, stated that the sentence was appropriate.  However, after reviewing the authorities submitted by Ms Sim, the respondent had to accept that the sentence could not stand as a matter of principle.

Discussion

8.I can appreciate the magistrate was very concerned with the appellant’s drug addiction, as that appeared to be his core problem, but to order a rehabilitative sentence to take place after a term of imprisonment is considered wrong in principle.

9.As the appellant was serving a term of imprisonment for another offence at the time the magistrate imposed the concurrent DATC order, that would mean that the drug treatment programme had to be postponed until after the prison sentence.  The case of R v Yeung Tak Shing [1980] HKC 537 had already pointed out that such an approach would be wrong in principle (see also HKSAR v Lam Mee Fat, HCMA1104/2002 and HKSAR v Lai Cham Chuen, HCMA1181/2003).

Result

10.In the circumstances, I had no alternative but to allow the appeal.  I had ordered that the DATC order be set aside and instead sentenced the appellant to 4 months and 20 days for the drug and assault offences.  The sentence of 4 months and 20 days is to run consecutively to the current imprisonment being served by the appellant.

Ms Christal Chan, SPP of Department of Justice, for HKSAR

Ms Sim Siow Eng, Suzanne, instructed by Messrs Cheung Chan & Chung, assigned by Director of Legal Aid, for the Appellant