HKSAR v. CHEUNG KIN MING

HCMA1040/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1040 OF 2002

(On appeal from TMCC 1991 of 2002)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted, after pleading guilty, of an offence of theft of a box of dried noodles, valued at $7.90, from a supermarket. The admitted facts of the offence were that he had surreptitiously taken the stolen item from the supermarket shelf and had placed it into the handbag carried by his wife at the time. The appellant was sentenced to detention in a drug addiction treatment center ("DATC") and his conviction was recorded. He appeals that sentence on the basis that it was wrong in principle as he says he was not a drug addict at the time and that it was manifestly excessive given the value of the stolen property.

3. As to the appellant's first complaint, before sentencing the appellant the magistrate obtained a background report in respect of the appellant. That report suggested that the appellant was drug dependant and that he had been spending something in the vicinity of $150 per day on his habit prior to his arrest. He and his wife were living on Comprehensive Social Security Assistance and their one-year-old son was being cared for in a foster home.

4. The magistrate, accordingly, further remanded the appellant for a DATC report. That report confirmed that the appellant was drug dependant and suitable for admission to a DATC.

5. The magistrate was satisfied that the information and conclusions as to the appellant's drug dependency contained in the two reports were correct. He said in his Reasons for Sentence given at the time of sentence :

".... I have listened to your submissions, but I am quite satisfied that Drug Addiction Treatment Centre is the proper place for you. You are a drug addict and you are denying that fact to even yourself. ...."

6. On the basis of the contents of the reports before him, the magistrate was quite entitled to conclude the appellant was drug dependant. Indeed, it would have been odd if he had not. From the contents of the DATC suitability report, the appellant had admitted taking drugs the day before being remanded in custody for the present offence. In my view, the magistrate cannot be criticized for approaching the appellant's sentencing on the basis he was drug dependant.

7. That leaves the appellant's second complaint, that is, that the sentence of detention in a DATC was manifestly excessive.

8. The appellant has had, since 1995, a series of theft and drug related offences. He has only once before been admitted to a DATC, that was in April 1997. There is no reason to doubt that a further period of treatment might benefit him and, as a consequence, benefit his family also. The only real question arising in this regard is whether an order that he be detained in a DATC would be disproportionate to his offence.

9. It is true that a DATC order is a custodial sentence, and that in circumstances where an offender would not be in prison because of the trivial nature of the offence but would, for example, be fined or bound over, it may be that a DATC order, as a custodial order, would be inappropriate : R. v. Leung Kam Kwong [1988] HKC 571. But in deciding that question, it is not so much the nature of the offence which is determinative but the nature of the penalty which may, other than the DATC order, have been imposed. That requires the taking into account of the offender's past history.

10. In the present case, that history was not good. The appellant is without doubt a recidivist. He has been a consistent offender since 1994. His last conviction for theft was in April of this year, where a fine imposed of $6,000 apparently had little deterrent effect as he committed this offence only some two months later.

11. The magistrate remarked in his Reasons for Sentence :

".... Whilst I was aware that the penalty should fit the crime, I had in mind that the defendant was a recidivist and he would therefore likely serve a prison sentence for the theft offence even though the amount involved was small. I also had in mind that DATC was created to help with detoxification and the later psychological urge to take drugs again and to assist the defendant's reintegration with society in due course."

12. The magistrate was obviously aware of the principles of sentencing involved. Imposing a further fine on the appellant would likely have been counter-productive and would not have stopped him offending again. The only real alternative to a fine in the circumstances of this case was a short sentence of imprisonment or other custodial sentence.

13. The real cause of the appellant's recidivism and of his family's difficulties was his drug addiction. The magistrate properly decided to address that by his sentencing approach, that is, by making the appellant subject to a DATC order. Such an order was neither wrong in principle nor manifestly excessive, and indeed, given the information concerning the appellant before the magistrate was the most appropriate sentence.

14. This appeal is dismissed.