THE QUEEN v. LI WAI KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 537 of 1985

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BETWEEN

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JUDGMENT

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1. The Appellant was one of four persons whom the Police found to be present in a room in Tai Po when they conducted a routine raid. All those four persons were arrested and the Police seized various items from the room including a match-box cover and some cigarette ends which on subsequent analysis were found to contain traces of dangerous drugs.

2. All four persons were charged with possession of these dangerous drugs, but, on the Appellant pleading guilty, the other three were discharged when no evidence was offered against them. The Appellant was sentenced to nine months imprisonment and ordered to pay $1,000 costs. He now appeals both against that sentence and the order for costs.

3. The Appellant is aged 33. His criminal record begins in 1983 when he was convicted of 'assault occasioning actual bodily harm'. On that occasion he was conditionally discharged. Next, on 21st June 1984 he was convicted of 'possession of heroin and possession of apparatus fit and intended for smoking dangerous drugs'. For those offences, he was sent to a Drug Addiction Treatment Centre. He was released from there on 25th October 1984. The offence which now brings him to court was committed on the 28th November 1984.

4. Although the Correctional Services considered the Appellant suitable for admission to a Drug Addiction Treatment Centre for his present offence, the Learned Magistrate took the view that there was no point in sending him there as he appeared to lack the motive to be rehabilitated. Instead, a sentence of nine months imprisonment was passed. That was on the 9th May 1985. By then, the Appellant had been on remand in custody since the 25th April 1985, pending a D.A.T.C. Report.

5. Even if the Appellant appeared to lack motivation, I think a D.A.T.C. order would have been a preferable disposal to imprisonment for someone of the Appellant's age and record. Despite lacking motive initially, that could have come with time. Presumably, the Correctional Services could not have regarded the Appellant as a completely hopeless prospect, for otherwise they would not have certified him to be suitable for a D.A.T.C. place. In making their assessments, the Correctional. Services take account not only of a man's physical suitability but also of his psychological suitability. Sending, drug addicts to prison for possession of small quantities of dangerous drugs is a very last resort, and if a more constructive form of sentence such as a D.A.T.C. order is available, that should be selected.

6. The Appellant has now been in custody for over three months. If I were now to send him to a Drug Addiction Treatment Centre he might well feel a justified sense of grievance. He would feel he was being punished twice : firstly, imprisonment for over three months, and then a Drug Addiction Treatment Centre order on top of that. Although I would have varied the present sentence of imprisonment to a D.A.T.C. order if this appeal had come on earlier, I now feel that my hands are tied, and that a D.A.T.C. order would no longer be just.

7. In the circumstances, therefore, I will not change the nature of the sentence passed on the Appellant, but, all the same, I am going to alter its duration. A sentence of nine months imprisonment does not sufficiently reflect the element of discount which should have been allowed for the Appellant's plea of guilty. Had the Appellant chosen not to co-operate with the prosecution by pleading guilty, it might well have turned out that there were evidential obstacles to proving this charge against the Appellant.

8. To reflect the Appellant's plea of guilty, I am reducing his sentence to six months imprisonment.

9. Crown Counsel does not seek to support the order of costs awarded against the Appellant. I can see no justification for that order, particularly bearing in mind the Appellant's plea of guilty. The order for costs is therefore rescinded.