HKSAR v. LAI CHAM CHUEN

HCMA 1181/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1181 OF 2003

(ON APPEAL FROM KCCC 17137/2003)

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistracy to one charge of Possession of a Dangerous Drug and was sentenced to a period in Drug Addiction Treatment Centre. He now appeals against that sentence.

2. When sentencing, the Magistrate noted the Appellant's lengthy drug addiction which was evidenced by his criminal record. He had been taking heroin since 1967. At the time the Magistrate sentenced him to DATC, the Appellant was serving a 4-month sentence for Theft.

3. The Magistrate believed that as the Appellant had not had the advantages of the DATC programme since 1982 he would benefit from the programme at this stage.

4. He knew this meant interrupting the Appellant's current prison sentence, to the extent of his being required to complete the unserved portion of his sentence after his release from the DATC programme. He assessed the overall time in custody, which, even allowing for the indeterminate nature of a DATC order, would be approximately 8 months. The Magistrate believed that would be the same time as the Appellant would serve if sentenced to imprisonment, with a starting point of 12 months resulting in an 8-month sentence after plea.

5. Generally, it is undesirable for a sentencing Magistrate or Judge to embark on this type of equation (see HKSAR v Lam Mee Fat, HCMA 1104/02 where the topic was discussed).

6. Although section 6A of the Drug Addiction Treatment Centre Ordinance, Cap. 224 provides that a DATC term can be interrupted by a short prison term, the converse does not appear to be statutorily possible, or desirable as a matter of sentencing practice.

7. The Respondent conceded that the Magistrate does not have the power to interpose a DATC order into the sentence of imprisonment, as he appears to have done. It was conceded also that it is wrong in principle to allow the simultaneous imposition of sentences of imprisonment and detention in DATC.

8. Accordingly, I allow the appeal against sentence to the extent of substituting for the DATC order a sentence of 6 months imprisonment taking a starting point of 12 months and taking into account the plea and observing the totality principle. That sentence will be consecutive to the sentence the Appellant is serving currently.