HKSAR v. NG TIT HING

HCMA1175/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1175 OF 2002

(ON APPEAL FROM ESCC 3092 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted on his own plea of an offence of possession of a plastic straw containing 0.32 grammes of heroin contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. He was sentenced to detention in a Drug Addiction Treatment Centre ("DATC").

3. The magistrate regarded that as the appropriate sentence having considered the appellant's background as a serial drug offender and after having called for a DATC report. That report was to the effect that the appellant was suitable for treatment in a DATC and the magistrate proceeded to make an order to that effect. She said in that regard :

"... In my view , the root of the Appellant's problem was his drug addiction. As he was recommended for treatment at the Drug Addiction Treatment Centre, I ordered that he be detained for treatment at the Drug Addiction Treatment Centre, and ordered that the conviction be recorded."

4. The appellant today does not now dispute that the DATC order imposed by the magistrate was appropriate, and indeed I think that is right. The amount of drug is small but, given the existing addiction of the appellant of the time of the offence and the history of similar and drug-related offences, that DATC order was appropriate and cannot be criticised.

5. Instead, the appellant simply asks for humanitarian early release because of the recent untimely death of his son and his wife's present medical condition. His 29 year-old son died in November of this year and the appellant says there are still matters to be dealt with arising out of that unfortunate event. Further he says his wife needs him because she is ill. He suggested that she has cancer and is to be operated on in January 2003 and that she was suicidal.

6. Upon further enquiries, it is plain to see the appellant was exaggerating the seriousness of his wife's conditions somewhat. Her present circumstance in fact is that at some uncertain future date it is intended she has a biopsy to discover the nature of a growth she is suffering from and that she is presently taking sedatives to calm her nerves. The appellant's wife lives at home with their two sons, both of whom are young adults or nearly so. She is employed, and indeed works at the same hospital where she is presently being treated.

7. Whilst I have considerable sympathy for both the appellant and his wife as to the untimely death of their son, and appreciate that the appellant's wife is presently undergoing a difficult time so far as her health is concerned, I do not think these matters, as they stand before me, satisfy the high degree of hardship required before a sentence is set aside on purely humanitarian grounds. Accordingly, this appeal is dismissed.