HKSAR v. SO CHI LUNG

HCMA888/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.888 OF 2004

(ON APPEAL FROM FLCC 1892 OF 2004)

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J U D G M E N T

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1. The appellant So Chi Lung pleaded guilty before a magistrate to one charge of possession of a dangerous drug, namely two tablets containing 0.02 grammes of Midazolam.  He was sentenced to the DATC.  He now appeals against the sentence.

2. At the time of the making of to DATC order, the appellant was serving a four months’ imprisonment for a case of theft and attempted theft.  The magistrate noted that the DATC Report concluded that the appellant was a drug dependant and was suitable to be admitted to the DATC.

3. The magistrate said that the appellant is aged 27, and he has abused drugs since 18.  Despite various orders of probation, DATC and imprisonment, he had never seriously attempted to quit drugs.  His consumption of Midazolam was top of heroin.  Hence, he agreed with the DATC Report that the appellant may benefit from a further period of treatment.

4. Ms Cheung for the respondent conceded that the making of a DATC order against a defendant who is already serving a term of imprisonment is wrong in principle.

5. Ms Cheung referred to the judgment of McMahon J inHKSAR v. Man Wai Shing, HCMA322/2004 and the judgment in Chinese of Deputy Judge Barnes in HKSAR v. Lam Man Wo [2004] 1 HKLRD 278 in support of such principle.

6. In Lam Man Wo, Deputy Judge Barnes referred to A.G. v. To Ka Shing [1987] HKLR 89.  The appellant To was convicted of robbery and sentenced to 18 months’ imprisonment.  Subsequently, he was convicted of wounding with intent in the District Court and sentenced to the Training Centre.  Upon release from prison, he was taken to the Training Centre.  Sir Alan Huggins VP referred to Yeung Tak Shing v. R., Crim. App. No.2174/1980 where Silke J (as he then was) quashed an order for detention in a drug addiction treatment centre which had been made to take effect “insofar as it might not interfere with present sentence he is serving”.  Sir Alan Huggins said that :

“We think that there was no jurisdiction to direct that the period of detention in the drug addiction treatment centre should run from a future date, but we agree that the sentence would have been wrong in principle even if within the jurisdiction of the court. …”

7. Deputy Judge Barnes also referred to HKSAR v. Lee Mee Fat, HCMA1104/2002 where McMahon J said that :

“      … it is undesirable, and indeed wrong in principle, to sentence an offender at the same time for separate offences before the court to a term of imprisonment and to detention in a DATC.

       There is one fundamental reason for this.  The sentencing court should look at the effect of the totality of sentence it imposes.  If that totality requires that factors of deterrence should prevail and a sentence of imprisonment should be imposed then so be it.  There is no point in imposing a separate wholly rehabilitary sentence such as any form of detention order.”

8. In Man Wai Shing, the appellant Man was serving two months’ imprisonment for theft, and he was then sentenced to DATC for another offence of theft.  McMahon J said :

“8.   The sentences, in my view, cannot be served concurrently.  One is a sentence of imprisonment, the other is not, it is a rehabilitative order.  One sentence is served in a prison, the other is served in a DATC.  The Commissioner of Correctional Services cannot comply with one sentence without being in breach of the other.  Further there is no provision which allows the DATC order to be delayed so as to come into operation at the conclusion of the sentence of imprisonment.

9.    The reverse situation is catered for by section 6A of the Drug Addiction Treatment Centre Ordinance.  That section provides for the interruption of a DATC order to allow for the service of a subsequently imposed sentence of nine months or less imprisonment.  But so far as I am aware there is no legislative provision which allows the operation of a DATC order to be delayed until the completion of a pre-existing sentence of imprisonment.”

9. The situation here is similar to Man Wai Shing.  With respect, I agree with the judgment of McMahon J and I shall quash the DATC order.

10. The dangerous drug in question is two tablets of Midazolam.  The usual sentence for possession of a small quantity of Midazolam is up to six months’ imprisonment.  I shall adopt the starting point of three months’ imprisonment.  I take into account the plea and reduce it to two months’ imprisonment.  This term should be consecutive to the four months’ imprisonment for theft.