R. v. WONG CHOI LAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 644 OF 1996

----------------------

-----------------------

--------------------

J U D G M E N T

--------------------

1. The appellant was convicted on her own plea of possession of a dangerous drug on 13th May 1996 and was sentenced to Training Centre.

2. The facts were that on 29th August 1995 in the evening, the Appellant was found by the police and searched and found to be in possession of three hand-rolled cigarettes containing a total of 0.73 grammes of cannabis, together with ten tablets containing 93 mg of chlordiazepoxide which is more commonly known as librium. Although both cannabis and librium are serious drugs, neither stand high in the scale, librium is a depressant with a low physical dependence and a low psychological dependence. Cannabis has an unknown physical dependence and a moderate psychological dependence.

3. I have every sympathy for the learned Magistrate in this matter. He obtained two probation reports in respect of which the appellant and her family was singally unco-operative. The learned Magistrate was faced with a dilemma which often confronts magistrates that he was seized of the fate of a young girl who needs assistance, who needs to be cared for and could not obtain it either from her family or the social circle within which she moved. He took therefore the step, which was entirely in the interest of the appellant of sentencing her to Training Centre.

4. Mr Poll, in his usual persuasive manner, had set out for me the factors upon which a magistrate may rely in reaching a level of sentence.

5. It cannot be denied that a sentence of Training Centre in respect of the quantity of dangerous drug in the possession of the appellant for her own use was a high sentence. She is aged 17 years, and if her background was ignored such a sentence would not have been passed. I am therefore faced with the same dilemma as the learned Magistrate. Do I consider the sentence in an entirely legal light, or do I take as a higher necessity the well-being of the appellant. I am constrained by the law; I am not permitted to create law, nor to depart from it except for the overwhelming interests of justice. I find that the sentence passed upon the Magistrate, although well meaning, to have been manifestly excessive.

6. Notwithstanding the latest probation report which I have received which does not recommend probation and upon which I must commend the Probation Services - they having gone to very great effort and made many enquiries and presented a very effective analysis - it would be wrong to impose a penalty which let her walk free without some restraint. The appeal is allowed, the sentence is set aside, the appellant is ordered to probation for a period of two years from the date of sentence with a condition of her probation that she co-operate at all times with the Probation Officer and obey the directions of that Probation Officer.