HKSAR v. LAI HAU YING

HCMA 80/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 80 OF 2014

(ON APPEAL FROM TMCC 3592 OF 2013)

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J U D G M E N T

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1.  This is an appeal against sentence following a plea of guilty to a charge of possessing 0.62 of a gramme of a powder containing ketamine.  The appellant was 20 years old at the time, working for a property agency.  She was remanded in custody for a DATC report and a probation report.  She was found to be not drug dependant.  She was further remanded for a training centre report and a rehabilitation centre report as well.

2.  She had had a difficult start in life.  She came from a broken home and at the age of 13 a care and protection order was made.  She did not do well at school. She associated with bad elements there and took drugs.  As a result of that she was put on probation on two occasions for drug offences; the first when she was 14 years of age, the second time when she was 16 years of age.  She breached the second probation order and was sent to a rehabilitation centre in June of 2010.  The breach was not because of drugs, it was because she was, at that stage, as a condition of the second probation order, under enrolment in Operation Dawn at a residential centre and she broke their rules by taking alcohol into the centre.  That caused the breach of the probation order and the rehabilitation centre order.

3.  After she left rehabilitation it is quite clear from the reports I have she did well.  The probation officer spoke well of her and prepared a report that was favourable.  Probation was not recommended on the basis that she did not need the supervision.

4.  So since, in effect, the age of 16 and the following rehabilitation order, she has done well.  She has full time employment.  The employer, knowing of these matters, keeps her position open to her and she has been working since I granted her bail back in February of this year.  She has been working at the property agency and has been in no further trouble.

5.  In all of those circumstances, I judge the training centre order that was made to be, frankly, too heavy.  She was not in need of a great deal of supervision that would justify training centre for a relatively minor offence; minor in the sense that the amount of drugs in her possession for her own consumption was less than 0.62 of a gramme.

6.  Therefore I am minded to allow the appeal against sentence and I have decided that the right order is a probation order for one year.  I make that not in the expectation or hope that the appellant will be subject to any intense form of supervision.  There is no need for that because she has got her life on a regular basis.  The point of making the order is that someone responsible keeps an eye on her and so she knows that there is someone looking over her shoulder and she might be asked to attend to give a urine sample, something like that, so that the probation officer can find out whether she has been staying away from those people who take drugs and whether she has stayed away from drugs herself. So it is in that spirit that I shall make the probation order.

7.  So I shall allow the appeal to the extent of quashing the training centre order and substituting a probation order for one year with a special condition that the appellant provide urine samples if requested by the probation officer.