HKSAR v. CHANG SAU WAI

HCMA682/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 682 of 1999

(On appeal from FLCC 784 of 1997)

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JUDGMENT

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1. On 21 May 1997 the appellant, CHANG Sau-wai, pleaded guilty to one charge of possession of 1.34 grammes of heroin hydrochloride for which she was placed on open probation by the learned magistrate for 24 months. However, by October, 1997 she was in breach of the conditions of the probation order and she was brought before another magistrate sitting at the Fanling Magistracy for sentence. On 19 May 1999 the learned magistrate set aside the Probation Order and imposed a prison term of 11 months.

2. One of the reasons stated by the learned magistrate for imposing a sentence which is a departure from the guideline of six to nine months is that he wished to protect the right of an unborn child, taking note that the appellant was pregnant at the time and is expecting in December of this year. The magistrate was concerned with the unsuccessful history of drug addiction treatment which the appellant had received in the past. He imposed the 11-month term because had the appellant served a short prison term which is within the guideline for the quantity of drugs specified in the charge, she might well have resorted to drugs again before she gave birth to the child. In his eagerness to protect the child, the learned magistrate imposed a term which ensured that the baby would be born during her period of incarceration.

3. I appreciate his concern over the well-being of the child, but obviously the learned magistrate had overlooked a simpler solution to what he perceived as a human rights problem. He could have imposed a sentence within the guidelines of six to nine months and upon release of the appellant from prison, he could then refer the matter for following up action by the Director of Social Welfare. There being an obvious practical alternative, the learned magistrate's departure from the sentencing guidelines is not justified by his reasons given.

4. For the reasons given, I would allow this appeal to the extent that her present 11-month prison term is substituted by one of four months' imprisonment. I would further request that upon the appellant's release from prison, the Director of Social Welfare be requested to look into this matter for following up action and possible assistance to this appellant.