HKSAR v. LEE TAT FAI

HCMA988/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 988 OF 2002

(On appeal from WSCC 1510 of 2002)

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J U D G M E N T

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1. The appellant appeared before the Principal Magistrate of Western Magistrates' Court facing two charges, they were both of possession of apparatus fit and intended for the injection of dangerous drugs, contrary to sections 36(1) and (2) of the Dangerous Drugs Ordinance, Cap. 134. He admitted both charges and asked for leniency. That is what he got. He was sentenced on each count to six weeks' imprisonment, to be served consecutively to each other and to the term of six months he was then serving for another drug offence.

2. The facts of the case very briefly related that the appellant was an in-patient at Queen Mary Hospital, and on two different occasions was found by the nurses to be lying in his bed with a needle. The syringe contained heroin and midazlam traces in one instance, and midazlam traces in another.

3. The appellant is a man with a long criminal record. His first appearance for drugs conviction being in 1986. He now appeals against his present sentence and advanced the unusual ground that the sentences were too lenient.

4. If I understand the situation correctly, it is as follows. He was serving a Drug Addiction Treatment Centre ("DATC") sentence when he was sent to prison for the earlier term of six months. The consecutive sentences in this case take his total prison term to nine months. That combined sentence of nine months' imprisonment has brought into play, section 6A, Drug Addiction Treatment Sentence Ordinance, Cap. 244 which, at sub-section (1)(a), reads :

"If a person in respect of whom a detention order, a supervision order or a recall order is in force is sentenced to imprisonment for a term of 9 months or less, the detention order, supervision order or recall order shall be suspended until the expiration of his term of imprisonment."

5. Consequently, after he has served the nine months he will be recalled to DATC. Put simply the appellant is asking me to increase the sentence passed by the magistrate so that he does not have to return to DATC.

6. The legislature clearly intended that anyone who is serving a DATC sentence and is, during the currency of that sentence, sent to prison for nine months or less, should have the DATC sentence suspended until he has served the prison term at which time he carries on serving so much of the DATC term as remains.

7. In this case, the magistrate passed a perfectly proper sentence, albeit light, and it would be wrong of me to tinker with that sentence simply to obviate the intentions of the legislature. The appeal is therefore dismissed.