THE QUEEN v. CHOW CHE KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 747 OF 1987

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BET\JEEN

THE QUEEN

and

CHOW Che-keung

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JUDGMENT

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1. The appellant was convicted of possession of 1.94 grammes of heroin and was sentenced to six months imprisonment.

2. There was no merit in his appeal against conviction. He was stopped and searched by two police officers. Five packets were found in his coat pocket. At the police station he made a written confession, which the magistrate found to be a voluntary statement, that the drugs were for his own consumption.

3. I was however concerned about the sentence. This offence occurred in March while he was on bail on a similar charge. On the latter he was sent to the Drug Addiction Treatment Centre in June. That was his first drug conviction.

4. The effect of the prison sentence is to suspend the Drug Addiction Treatment Centre order. In his Reasons for Sentence the magistrate said:

"I am of the view that v/hen Appellants commit dangerous drug offences like this when out on bail for more serious offences, they are really being quite contemptuous of the Courts, and the law and order they stand for. They think they can got concurrent sentences.

To discountenance this, you are sentenced to 6 months imprisonment. The effect of that is the Drug Addiction Treatment Centre order is suspended, and will resume after you have served the sentence."

5. This, with respect, is not the right approach to sentencing an addict on a charge of simple possession. It is in the interest of the public and the addict himself that he be cured. The prospects of this are better in a Drug Addiction Treatment Centre than in prison. He should only be sent to prison if he is not suitable for treatment and there is no reasonable alternative, or when he has been convicted of possession for the purpose of unlawful trafficking and it is necessary to pass a deterrent sentence.

6. This is not the situation here. The Intake Officer reports that he shows remorse and determination to quit, his habit. The Commissioner considers him suitable to continue with the treatment programme.

7. For these reasons I allowed the appeal and quashed the sentence, substituting therefore a new detention order.