HKSAR v. Fok Lin Yau

HCMA 503/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 503 OF 2011

(ON APPEAL FROM KCCC 2236/2011)

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BETWEEN

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Before: Hon Fung J in Court

Date of Hearing: 3 August 2011

Date of Judgment: 3 August 2011

Date of Reasons for Judgment: 5 August 2011

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REASONS FOR JUDGMENT

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1.The appellant Fok Lin Yau pleaded guilty to a charge of possession of a dangerous drug before the Principal Magistrate and was sentenced to the Drug Addiction Treatment Centre (“DATC”). He is appealing against this order.

The facts

2.The appellant was stopped and searched, and was found in possession of one packet of dangerous drugs containing 0.09 gram of heroin hydrochloride.

Reason for sentence

3.The appellant was a drug-addict since 1982.   He had a record of 6 drug related offence including one of trafficking, the last of which was in 2000 where he was sentenced to DATC. 

4.At the time of sentence, the appellant was serving 4 months’ imprisonment for possession of obscene articles for the purpose of publication.  The Magistrate imposed a DATC order, but suspended it to run at the expiration of the 4 months’ sentence.

Ground of appeal

5.Ms Sim, for the appellant, relied on the ground that it is wrong in principle to suspend a DATC order to run at the expiration of the subsisting term of imprisonment.

Discussion

6.Under s. 6A(1) of the Drug Addiction Treatment Centres Ordinance, Cap. 244. 

“(1) If a person in respect of whom a detention order, a supervision order or a recall order is in force is sentenced to imprisonment-

(a) for a term of 9 months or less (or in the case of a detention order, supervision order or recall order made before the commencement of the Drug Addiction Treatment Centres (Amendment) Ordinance 1986, 2 years or less), the detention order, supervision order or recall order shall be suspended until the expiration of his term of imprisonment;
(b) for a term of more than 9 months (or in the case of a detention order, supervision order or recall order made before the commencement of the Drug Addiction Treatment Centres (Amendment) Ordinance 1986, 2 years) or a new detention order is made in respect of him, the first-mentioned detention order, or the supervision order or recall order, as the case may be, shall cease to have effect.”

7.In R v To Ka Shing [1987] HKLR 69, Huggins VP held that there is no jurisdiction to direct that a DATC order should run from a future date.

8.Hence, if a defendant is serving a DATC sentence and subsequently sentenced to a term of imprisonment of less than 9 months, there is jurisdiction to suspend the pre-existing DATC order until after the expiry of the sentence of imprisonment, but not vice versa. 

9.There is a long series of authorities stating that it is wrong in principle to suspend a DATC order until after the expiry of pre-existing prison sentence which in effect is to impose a rehabilitation sentence after a term of imprisonment (see R v Yeung Tak Shing [1980] HKC 537, per Silke J (as he then was) and HKSAR v Ledesma [2011] 2 HKLRD 674, per Tong J).

10.In the event, I discharged the DATC order and sentenced the Appellant afresh. 

11.Ms Chan, for the respondent, referred me to R v So Ma Kwai HCMA 466/1992, where Silke VP sitting as an additional judge of the High Court noted that in 1991, the normal range of sentence imposed on a plea on those with a history of multiple offence of possession of dangerous drugs was in the range of 9 to 12 months’ imprisonment. Ms Chan submitted although it is not guideline, in any case good reference. 

12.Be that as it may, it is not in common to see that even for repeated offenders of possession of small amount of dangerous drugs, the sentence upon plea before a magistrate would attract a starting point of less than 9 months’ imprisonment.

13.I considered in the present case a sentence of 6 months’ imprisonment upon plea as appropriate.  

14.The drug and obscene articles offences are totally separate offence (save perhaps that drug addicts are prone approach to commit such offence in return for quick money).  The global sentence would not be excessive upon a consideration of totality.  

15.In the event, I sentenced the Appellant to 6 months’ imprisonment, to run wholly consecutive with the 4 months for possession of obscene articles. 

Ms Eva B W Chan, PP of the Department of Justice, for the Respondent

Ms Sim Siow Eng Suzanne, assigned by the Director of Legal Aid, for the Appellant