THE QUEEN v. POON YAN CHEUNG

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J. A. :

1. On the 23rd September 1985 Poon Yan-cheung was released from the Hei Ling Chau Drug Addiction Treatment Centre. On the same day, pursuant to Section 5 of the Drug Addiction Treatment Centres Ordinance, the Commissioner of Correctional Services ordered that Poon should be subject to the supervision of the after-care section and purported to make obligatory upon him a number of specific requirements. One of those requirements was that during the period of 12 months from the date of his release he should lead a law-abiding and honest life.

2. Poon did not lead a law-abiding and honest life because on the 19th December following, in the Western Magistracy, he was convicted of possessing dangerous drags; for which specific offence he was fired. On 20th January of this year Poon was brought back before another Magistrate charged under Section 5(3) of the Ordinance with failing to comply with the requirement that he should lead a law-abiding and honest life. The Magistrate found him in breach of that requirement and, taking into account his very bad record in the context of drugs, sentenced him to 12 months imprisonment.

3. Poon appealed to the High Court against that sentence and when the matter came before Addison J. on 26th March the appeal was reserved to us pursuant to Section 118(1)(d) of the Magistrates Ordinance. This was because the Judge considered it questionable whether the Commissioner of Correctional Services had the power to impose such a condition in the Supervision Order.

4. Section 5(1) of the Drug Addiction Treatment Centres Ordinance reads: -

"The Commissioner may order that a person released from an addiction treatment centre shall, for a period of 12 months from the date of his release, be subject to supervision by such organisation or person as he may specify and shall while under such supervision comply with such requirements, including requirements as to medical examination, as he may specify."

5. In Section 6(1) provision is made for the Commissioner, if satisfied that a person against whom a supervision order is in force has failed to comply with any requirement of the order, to make a recall order against such person requiring him to return to an addiction treatment centre. In Section 6A it is provided that "if a person in respect of whom a detention order, a supervision order or a recall order is in force is sentenced to imprisonment (a) for a term of 2 years or less, the detention order, supervision order or recall order shall be suspended until the expiration of his term of imprisonment" and if "(b) for a term of more than 2 years or a new detention order is made in respect of him, the first mentioned detention order or the supervision order or recall order as the case may be shall cease to have effect." Provision (a) would not appear to reflect the best sentencing policy.

6. There would seem to be a lacuna in Section 6(1) in so far as it makes no specific provision for recall if a supervisee relapses into drug abuse but normally, as in the instant case, an appropriate requirement is included in the order. Accordingly on learning of Poon's conviction for possessing drugs and if the evidence showed that he had possessed them for his own consumption the Commissioner could have recalled him. Alternatively he could have been charged with a breach of the requirement that he should not relapse into drug abuse.

7. What has concerned us, as it concerned Addison J., is the vires, in other words the power, of the Commissioner to impose a condition so wide as to require the supervisee to lead a law-abiding and honest life for 12 months. While analogous to the provision regularly found in probation orders requiring a probationer to be of good behaviour and to keep the peace that wide requirement is imposed by the court and it falls to be considered whether an equivalent power can be deemed delegated to the Commissioner by the legislature having regard to the express provision of Section 5(1).

8. We are of the opinion that the term "requirements" in Section 5(1) must be read in the context of supervision apt to prevent renewed addiction and be such, and only such, as to facilitate its exercise both generally and in relation to the medical examination of the supervisee. The particular condition that Poon should lead a law-abiding and honest life is outside these parameters and ultra vires the Commissioner.

9. Normally a legal point of this nature would be raised by way of judicial review. Having expressed our opinion we shall now invite the assistance of Counsel for the Crown a to the appropriate order when the appellant has appealed only against sentence.

10. The course suggested to us by Mr. McCoy on behalf of the Crown is that we should grant Poon leave to appeal against conviction out of time. We adopt that suggestion and on the footing that he notionally makes that application we grant it, quash the conviction and set aside the sentence of 12 months imprisonment.