HKSAR v. LEE NGA YAN

HCMA767/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 767 OF 1999

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J U D G M E N T

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1. The Appellant was charged with an offence of possession of a dangerous drug, contrary to s.8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134, in that on 6 August 1998, inside Room 6, Flat I, 3/F, No.26 Sai Yeung Choi Street, Kowloon, she had in her possession 2.21 grammes of a crystalline solid containing 2.18 grammes of methamphetamine hydrochlordie (a salt of methamphetamine).

2. Before Mr Saunders, a magistrate, the Appellant pleaded guilty. Before sentencing, the Magistrate called for a Drug Addiction Treatment Centre report and a Probation Officer's report. He remanded the Appellant in custody for those reports. The report from the Drug Addiction Treatment Centre showed that although the Appellant had extensive experience with dangerous drugs, she was not, at the time the report was obtained, drug-dependant. She was therefore not suitable for admission to the Centre. The Probation Officer's report confirmed her drug experience but showed that she was not willing to undergo voluntary rehabilitation which she strongly resisted. She was not recommended for probation.

3. Having considered those two reports, the Magistrate decided that the Appellant would not respond to probation, which was the sentence that he had in mind, as stated in his Reasons for Sentence. The Magistrate thought that he had no alternative but to send the Appellant to a Training Centre, concluding that such a sentence was the only means of putting proper direction and education into the Appellant's life.

4. When I was reading the file in relation to this case, I was impressed with the ground of appeal set out in the Notice of Appeal, which was written by the Appellant herself. It was stated in the Probation Officer's report that the Appellant's mother shared a bad relationship with her and did not support her. Her mother expressed difficulty in accepting her to return home and suggested to the Probation Officer that a structural compulsory treatment programme might be more beneficial to her. The Appellant's complaint was that it was based on that relationship that the Probation Officer did not recommend her fit or suitable for probation.

5. In her ground of appeal, the Appellant stated that she had reached 18 years of age and whether she should be in custody should not be decided by her relationship with her mother. She also stated that she was remorseful and asked the Court to give her a chance so that she could rejoin society and serve it. In the circumstances, I was thinking that perhaps a community service order would suit the circumstances of the Appellant. The crime of which the Appellant was convicted is doubtless a serious crime, but bearing in mind that she was 17 years of age when the crime was committed, she was a first offender and she pleaded guilty, as well as showing remorse, I am of the view that a community service order may be able to put some sense into her to feel that she is a part of society and needs to serve society instead of just doing purposeless things in her life.

6. Mrs Pauline Cheng, Probation Officer, is the officer who has reported on her when I requested a community service report on the Appellant. Mrs Cheng also shared the opinion of the former Probation Officer who had reported to the Magistrate that the Appellant was not suitable for probation supervision. Mrs Cheng also opined that the Appellant was not suitable for community service order. Mrs Cheng has kindly attended Court today and she has explained to me that the biggest worry about the Appellant and therefore the main ground of her objection to a community service order is that the Appellant is not accessible because she apparently has no fixed abode anywhere in Hong Kong. The Appellant has told her that she had lived with her boyfriend, Mr Mui Lap-yan, before her incarceration in the Training Centre, and she has provided a telephone number to Mrs Cheng to contact Mr Mui. However, it has transpired before me that the telephone number was wrongly recorded and therefore Mrs Cheng has not been able to contact Mr Mui. Mrs Cheng has impressed upon me that it is important for appropriate conditions to be imposed in the community service order for the purpose of ensuring that it will have rehabilitation effect on the Appellant if I am minded to grant a community service order in her favour. The conditions include that :

(1) the Appellant must have a fixed place of abode and a contact telephone number;

(2) she must have a proper job;

(3) she must observe a curfew between 11 p.m and 6 a.m. everyday; and

(4) she must undertake urine tests for drugs as directed by the probation officer.

7. I have put forward all these conditions to the Appellant and told her that this is the last chance that the Court is willing to give her, hoping that she will return to society as its useful member by doing community service. The Appellant has maintained her wish to obtain this chance of not remaining in custody and expressed her understanding and consent to the conditions.

8. I therefore allow the appeal, set aside the training centre order and substitute it with a community service order, in that, subject to the conditions as mentioned by Mrs Cheng that I referred to above, the Appellant would have to undertake community service for 180 hours within a year.