R. v. CHONG SIU YEUNG

1994, MA Nos.739 & 740

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H E A D N O T E

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SENTENCE - SECTION 8 POSSESSION OF DANGEROUS DRUGS - FIRST OFFENDER - DATC ORDER APPROPRIATE, WHERE APPELLANT SUITABLE, EXCEPT IN EXCEPTIONAL CIRCUMSTANCES.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS. 739 & 740 OF 1994

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J U D G M E N T

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1. The appellant pleaded guilty to nine charges of possession of dangerous drugs, contrary to s.8 of the Dangerous Drugs Ordinance, and to one charge of resisting arrest. He was sentenced by Mr Andree-Wiltens in Tuen Mun Magistrates' Court to a total of three years' imprisonment.

2. The nine drug charges were separate cases and the offences were committed on different dates between 26th April and 2nd June this year. The quantities of heroin varied between 2.02 grammes and 6.82 grammes. The total was 32.59 grammes, contained in 135 straws. Most of the offences were committed while the appellant was on bail.

3. The appellant is 18 and has no previous convictions. He is suitable for the Drug Addiction Treatment Centre and told the magistrate that he wanted to go there.

4. Nevertheless, the magistrate felt obliged to pass a sentence of imprisonment. In his Reasons for Sentence, he expressed himself thus:-

"Despite the appellant's young age, and his pleas, I found myself unable to consider D.A.T.C. to be the appropriate sentence for these matters. The appellant is a danger to society by his repeated offending, and actively encouraged drugs traffickers by his purchase of these large amounts of drugs. In my short time of almost two months in Tuen Mun, I am able to state that there is a significant problem in the area with young offenders both possessing and trafficking in heroin."

5. The appellant appears in person, having been refused Legal Aid. Counsel for the Crown adopts a neutral stance, but has drawn my attention to the cases of R. v. Lo Sing-mei, MA Nos.701 and 702 of 1993 and R. v. Li Kam-chan, Cr. App. No.123 of 1993.

6. In each of those cases the appellant had a long record of drug offences. Sentences of imprisonment were inevitable.

7. Where a first offender is convicted under s.8 and is suitable for treatment, I have no doubt that it is the intention of the legislature that, except in wholly exceptional circumstances, he should receive treatment for his addiction.

8. The appeals are allowed, the sentences set aside and DATC orders substituted therefor.