R. v. CHOW KAM CHUEN

IN THE COURT OF APPEAL

1996, No. 603
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty to two counts of being in possession of dangerous drugs. He was sentenced to a total of 2 years 8 months' imprisonment. He now seeks leave to appeal against this sentence.

2. There is nothing exceptional in the facts of this case. Two police officers on duty in the evening of 18 March 1996 at Tai Kok Tsui observed the applicant acting in what they considered to be a suspicious manner. He was stopped and searched and what was suspected to be dangerous drugs were found on him. He was taken back to his residence and a further quantity of suspected drugs was found. It subsequently transpired that the total narcotic content of the dangerous drugs found was almost 30 grams. The applicant at all relevant times claimed that all the dangerous drugs were for his own consumption.

3. The trial judge HH Judge Davies expressed some surprise that the applicant had not been charged with trafficking in dangerous drugs having regard to the quantity of dangerous drugs involved. However in his reasons for sentence the judge does state that he has taken cognisance of the latent risk there must have been for the applicant to traffick in such a quantity of dangerous drugs.

4. The judge adopted four years as his starting point and gave the applicant the usual 1/3 discount for his plea.

5. Before us the applicant produced a letter he had sent to the court which we have not received and a letter from his wife.

6. He claimed that the judge had not considered the report which had been received from the Drug Addiction Treatment Centre. There is no reason to believe that this is true. The report was before the judge when he passed sentence and we have no doubt that he would have considered it. The applicant also referred to his remorse and the fact that his wife had now contracted cancer.

7. In the wife's letter she confirms that she has been receiving treatment for cancer of the breast. The treatment she has been receiving has occasioned her a great deal of distress and discomfort.

8. She also referred to the difficulty she has encountered as a result of not being able to spend all her time at her business.

9. While we have every sympathy with the applicant's wife for the problem she has encountered we regret that we cannot reduce the sentence which was imposed on these grounds.

10. However the question which arises on this application is whether the applicant should have been permitted to conclude the treatment he had been receiving at the Drug addiction Treatment Centre at the time when he was sentenced. There is nothing in the report which we received from the Drug Addiction Treatment Centre which would lead us to believe that if the applicant is allowed to complete the treatment it would not be successful. There is authority for the proposition that a person should be allowed to complete a course of treatment at the Drug Addiction Treatment Centre unless there are compelling reasons to the contrary.

11. With some hesitation we have come to the conclusion that this man should be given one final chance to cure himself of his addiction. We emphasize this is a final chance.

12. We treat this application as the appeal. We quash the sentences of imprisonment which were imposed and order that the applicant completes his course of treatment at the Drug Addiction Treatment Centre. To this extent the appeal is allowed.