THE QUEEN v. LAU CHUEN CHUNG

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J U D G M E N T

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Silke, V.-P.,

1. The applicant was convicted, after trial before His Honour Judge Caird in the District Court, for possession of dangerous drugs for the purpose of unlawful trafficking. The amount of drugs concerned was 31.95 grammes of a mixture containing 2.29 grammes of salts of esters of morphine. Subsequent to conviction the trial judge obtained reports because he considered that the case presented some unusual aspects. The net result was that on the 12th of April 1989, the trial judge placed the applicant on probation with conditions attached.

2. The probation period was for two years. The conditions required the applicant to enter a program with St. Stevens society and to complete a stay in a nominated rehabilitation house for a period of eight months. He was then to undertake a period of aftercare for sixteen months and to reside in a halfway house for a period to be fixed. He was required to subject himself to urine tests as directed and he was required to abstain from dangerous drugs.

3. The Probation Officer concerned with the applicant was Mr. HO Wing-fat. On the 7th of August 1989 he brought to the attention of the trial judge difficulties that were emerging from the applicant's adaptation to the conditions imposed and his observance of them. On the 19th of October 1989 he brought to the attention of the judge breaches of those conditions.

4. The applicant appeared before Judge Caird on the 20th of October 1989 to be dealt with for breach. Of the breaches we think it is only necessary to say that he failed to observe the residential requirements.

5. On that day the applicant appeared in person, the Probation Officer was present and Mr. Roger Liu appeared for the Crown. Having listened to both the applicant and to the Probation Officer, the judge adjourned the matter to 9.30a.m. on Friday the 3rd of November. He made an order that: first, the applicant be advised to contact the Director of Legal Aid for legal representation, and, second, and more important, that he should "look for a voluntary agency to assist".

6. On the 3rd of November the matter resumed and the applicant was then represented. Mr. Ho who assisted us at the original hearing of this application informed us that there was then presented to the judge a letter from SARDA, dated the 26th of October 1989, which stated that they had interviewed the applicant on the 24th of October and were willing, subject to the usual conditions, to accept him. There was a place ready for him on the 13th of November 1989.

7. The note on the record reads:

"Defendant sentenced to term of 2 years. 'You have had your chance and you have failed to take advantage of it.' Probation order discharged."

8. In his Reasons for Sentence which were given in full at the same time, he made reference to the defendant's "own choice in his failure to accept the help that was offered to him and which led him to appear again" before the court. He made no reference to the letter of the 26th October from SARDA.

9. The applicant seeks leave, effectively out of time, to appeal against that sentence. When this matter first came before us we thought that he should have legal representation and to that end we granted legal aid. Today the applicant has the benefit of being represnted by Mr. Sceats

10. This court is of the view that the original sentence was of a somewhat unusual nature given the type of offence concerned. However, as the applicant must have been under the strong impression on the 20th of October when he left Judge Caird's court that there was, at the very least, a probability that he would be placed again on probation provided that he could find a voluntary agency to assist him. And there was a filling voluntary agency when the matter arose on the the 3rd of November.

11. No indication appears in the Reasons for Sentence of the course the sentencing process took and we are unclear as to why the trial judge changed his mind. It is preferable, if a judge does indicate to an applicant when apparently giving him another opportunity to seek assistance, that, if he has imprisonment in mind, he should clearly indicate to the applicant that further assistance may not necessarily help him to avoid such a sentence. But that was not a course taken here.

12. We are of the view that, in the light of all the unfortunate circumstances of this case, we should ourselves impose a probation order and remove the term of imprisonment. The terms of the order which we propose to make have been brought to the attention of the applicant. He understands them. He has agreed to comply with them. He is aware of the consequences of any breach.

13. We therefore grant leave to appeal, treat the hearing as the hearing of the appeal, allow the appeal, set aside the order of imprisonment and impose a probation order for a period of eighteen months as from today. There will be attached to it the following special conditions:

(1)     to complete a full course of renabilitation for a period of four to six months with SARDA in Shek Ka Chau Renabilitation Centre;

(2)     to reside in a halfway house for an additional period of up to 16 weeks at the joint discretion of the Probation Officer and SARDA's aftercare officer;

(3)     to remain under the supervision of the Probation Officer in consultation with the SARDA aftercare worker, this for the period of the probation;

(4)     during the period of probation to comply with periodical chemical tests;

(5)     during the period of the probation to remain drug free;

(6)     the applicant is to present himself at the Hong Kong Intake Unit of SARDA on the 27th of June 1990 at or before 9.30a.m.

He will now be discharged from custody.