WOO HUNG KWONG v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 2 OF 1988

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J U D G M E N T

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1. On 8th December, 1987 the appellant was convicted on his own plea of ill treatment to a child, namely, his own child then 6 years of age. He was sentenced to a Drug Addiction Treatment Centre. He appealed against the sentence.

2. The appellant has a history of being addicted, on and off, to heroin. He told the Court that on the day when he chastised his child with a ruler and then a leather belt, he had stopped taking drugs for a period of time. He had worked as a driver but after receiving complaints from parents and teachers that his son was naughty, he gave up his job to supervise his son more closely.

3. Colour photographs of the child were taken - these show obvious signs of abrasions but no signs that these caused the child to bleed. There was one round sore which had obviously bled, but it is not in dispute that it was caused by the child accidentally bumping into his grandfather's cigarette.

4. As this case caused me some concern, I adjourned the appeal for obtaining a Probation Officer's report which the learned magistrate had not asked for.

5. This report revealed that the child is hyperactive and "naughty" to used the word in the report. The grandfather said the child was naughty and lacked discipline. The case worker at the Po Ieung Kuk described him as "quite a naughty and playful child who was at times manipulative and _:attention-seeking".

6. The child's mother left the appellant in 1983 - as the child grew older he became "naughtier" (again to use the word in the report) and was beyond his grand-parents' control.

7. In TSE Mui v. The Queen, Criminal Appeal No. 229 of 1972, the accused had pleaded guilty to aiding and abetting the keeping of an unlicensed message establishment. The maximum penalty for that offence was a fine of $1,000 or six months' imprisonment. There was evidence she was a drug abuser although expert evidence indicated she would not gain any benefit from Drug Addiction Treatment Centre sentence and she also asserted she was not interested in such treatment. Sir Ivo Rigby, C.J. said:

"Crown Counsel, to whom I am indebted in this matter, has pointed out that of course detention under a drug addiction treatment centre is a custodial sentence and it is not normal in offences of this nature to order a custodial sentence. He has further pointed out that the appellant has given every indication that she is not likely to respond to further treatment in a drug addiction treatment centre and has again made that clear in this court. I have no doubt that the learned magistrate in making this order was primarily concerned in doing what he considered best for the appellant and to give her a further opportunity, if she so wished, to be cured of her drug addiction .....

In all the circumstances of the case I think that it would, therefore, be wrong to make what is in effect a custodial order on a charge of this nature in respect of a drug addict who has clearly indicated that she herself is not interested in rehabilitation. The sentence imposed must be one which is appropriate to the particular offence committed."

8. I do not suggest that an immediate custodial sentence is not a proper sentence for the offence charged, but I do not think that a Drug Addiction Treatment Centre Order was appropriate in the circumstances of this case.

9. The appellant had, twice before, been sent to a Drug Addiction Treatment Centre without any benefit. I have no doubt the learned magistrate was doing his best for the appellant and the child. The appellant has already been in custody for 2 months (the maximum sentence for this offence being 6 months' imprisonment on summary conviction). I allowed the appeal, set aside the Drug Addiction Treatment Centre Order and placed him on probation for a period of 2 years.