Cheng Sam-tai and Others v. The Queen

CACC000998/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 998 OF 1971

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Coram: Leonard J. in Court.

Date of Judgment: 25th February, 1972

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JUDGMENT

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Leonard J.:

1. These are appeals against sentence. The 1st appellant was sentenced to a term of 2 years imprisonment for smoking a dangerous drug that is to say heroin. The 2nd appellant was sentenced to terms of 9 months imprisonment for smoking heroin at the same time and place and a consecutive sentence of 12 months imprisonment for attempted robbery. The 3rd appellant was sentenced to a term of 9 months imprisonment for smoking heroin at the same time and place. There is no merit whatsoever in the appeals of the 2nd and 3rd appellants and their appeals are accordingly dismissed.

2. Nineteen persons in all were arrested on the occasion in question in a heroin divan in a hut at Tsuen Wan. The appellant, a man of 28, had five previous convictions, three of which were in connection with dangerous drugs. On the first occasion he was charged with smoking opium and was fined $25; on the second occasion he was charged with possession of dangerous drugs and was bound over; on the third occasion again on a charge of possession of dangerous drugs he was sentenced to the Drug Addiction Treatment Centre at Tai Lam.

3. When interviewed by the Probation Officer in connection with this offence and indeed when before the magistrate he flatly turned down an offer of further treatment in a drug addiction treatment centre. He actually said that he would rather remain a drug addict. Before me he said that he thought that he was incurable, that he was not willing to try and that it was impossible for him to stop smoking because there were dangerous drugs on sale everywhere. He said he just did not know what he was going to do. In his statement of findings the learned magistrate said:

"In view of the above it seems to me pointless to make any treatment order, but at the same time I felt it would not be helpful to the appellant, the treatment centres or Society to allow the appellant to profit out of his wilful and obstinate refusal to countenance the offer of help. I therefore ordered that he be imprisoned for 2 years, since this will represent a term nearly equivalent to the period he might have spent in the Centre, without the added handicap of the possibility of recall to Centre after release."

I must confess that both Crown Counsel and I are at a loss to understand that 2 years would represent a term nearly equivalent to the period he might have spent in a Centre. Under section 4 (2) of the Drug Addiction Treatment Centre's Ordinance

"A person in respect of whom a detention order is made shall be detained in an Addiction Treatment Centre for such period not less than 6 months and not more than 18 months from the date of such order, as the Commissioner may determine, having regard to the health and progress made by such person and the likelihood of his remaining free from addiction to dangerous drugs on his release and shall then be released."

In section 5 the Commissioner may order a person released to be subject to super-vision and if the addict fails to comply with the terms of supervision a magistrate may make a further detention order against him. This, however, is not to say that a term of 2 years imprisonment would represent a term nearly equivalent to the period he might have spent in the Centre. Indeed I understand that period generally spent in the Centre is between 6 and 9 months.

4. The appellant complained of the disparity between the sentence imposed on him and that imposed on the other 18 persons before the court, the maximum in respect of any of the others being 9 months imprisonment for this offence although many had similar records. The reasoning behind the disparity would therefore appear to be the appellant's unwillingness to accept treatment. I form the view that this unwillingness could not properly be regarded as sufficient reason for such a wide disparity. It must be remembered that addiction itself is not an offence. I further consider that the appellant is emotionally upset by reason of his addiction; he is clearly in a state of despair. It is this despair more than anything else that has led to his refusal to accept further treatment. In all these circumstances I consider that a sentence of 2 years imprisonment for the offence of smoking only is manifestly excessive and wrong in principle and that Society's disapproval of his unwillingness to accept treatment could be expressed by a sentence above but not so greatly disparate with that imposed on the other offenders. I, therefore, allow this appeal and reduce the sentence to one of 12 months imprisonment.

25th February, 1972

Representation:

Appellants in person.

Carolan, C.C. for Respondent.