HKSAR v. WONG PO WAN

1997, NO. MA 865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. On 12^th August 1996, the appellant pleaded guilty to one count of possession of a dangerous drug. Sentence was adjourned by the magistrate for reports. On the adjourned date, 2^nd September 1996, the magistrate having had the necessary reports, sentenced the appellant to eight months imprisonment suspended for a period of 18 months on condition that the appellant attended and completed a full course of drug withdrawal treatment with the St. Stephen's Society commencing on 24^th September 1996 and that included that the appellant should reside there. It was made known to the appellant by the magistrate that if he was in breach of any of these conditions, the suspended sentence might be activated.

2. The appellant was duly admitted to St. Stephen's Society and there he followed the course of treatment for drug addiction until 28^th May 1997 when he applied to magistrate for a variation of the conditions. He told the magistrate that the course was for 12 months but having attended and completed nine months of the course, he was completely drug free and he was willing to surrender at regular intervals for urine test, if he were allowed to end the course and be released for further attendance of the course. On that occasion, he had not produced any evidence to substantiate his claim that he was no longer addicted.

3. The magistrate told him on that appearance that he should have some representative of St. Stephen's Society to indicate to the court that they agreed to the appellant leaving the Society. The appellant was warned that if he failed to comply with the requirement of completing the 12 months treatment programme and walked out of the Society without the Society's consent, he would be considered in breach of the conditions of the suspended sentence, in which case the suspended sentence would be activated.

4. On 30^th July 1997, the appellant was brought before another magistrate because he left the Society after he had completed only 10 months of the 12 months programme. He was told that he had been in breach of the conditions of the suspended sentence. He told the magistrate that he thought he was no longer addicted to drugs and because his father was dangerous ill, he had no alternative but to leave the Society. He did not realised the seriousness of what he did. The magistrate adjourned the case for DATC Report and Probation Report and to find out if St. Stephen's Society would still admit the appellant to serve out the remainder of the programme.

5. On 20^th August 1997, the appellant was brought before the same magistrate. Both the Probation Report and DATC Report indicated that the appellant was no longer a drug abuser. The magistrate activated the suspended sentence and imprisoned the appellant for eight months. It is against this sentence that the appellant appealed.

6. Before me on 13^th November 1997, the appellant reiterated that he considered himself no longer a drug abuser and he left the Society because he was allowed to do so. The Society's dormitory at the time was being pulled down and there was no available accommodation for him. Supervisors at the dormitory told him he could leave provided he returned to the Society for the meetings.

7. I adjourned the case for a report from St. Stephen Society to verify the truth of what the appellant told me in court.

8. The Society in a letter to the Probation Officer, states that the appellant left the Society of his own accord without their agreement.

9. On 27^th November 1997 at the adjourned hearing, the appellant was informed of the response from the Society and that what he told the court on the last occasion was inconsistent with the letter from the Society.

10. Ms Cheng for the Government submitted the Government accepted that the appellant was freed from drug now and when he left the Society. It was also submitted that the court had the discretion under s.109F of the Criminal Procedure Ordinance, Cap.221 to activate or not to activate or to activate in part.

11. The appellant then informed me that he had been custody since August 1997.

12. The purpose of the suspended sentence imposed by the magistrate with conditions that the appellant was to undergo treatment for his drug addiction is to rehabilitate the appellant. The appellant has abide by the conditions of the suspended sentence and completed 10 months of the programme. It is accepted by the Government that he is no longer addicted to drug. It would appear now that the purpose of the suspended sentence has been achieved. However, he of his own accord left the programme and that is a breach of the conditions of suspended sentence and the magistrate was entitled to activate the suspended sentence. The magistrate's decision cannot be faulted. However, the Probation Report is that the appellant has the support of the Society and the DATC Report shows the appellant has the support of his family and has been drug free. He has almost completed the course of 12 months and being drug free, to require him to return to the Society does not make him a better person. He has been in custody since August 1997 and that means that he has served the equivalent of a six months sentence. Having regard to his sentence is only eight months it would appear that he has served 3/4 of that term already. That would have been sufficient penalty for an offence of this nature. In the circumstances, the sentence of eight months which has been activated is set aside and a sentence of such a term as to enable his immediate release is substituted therefore.