THE QUEEN v. LEE KWOK CHOI

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 98 OF 1987

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JUDGMENT

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1. The appellant pleaded guilty on the 17th December 1986 to possession of a dangerous drug. The drugs involved in the charge was 10 tablets of methaqualone of 2.4 grammes in weight. The appellant was arrested at 12.45 a.m. on the 30th or November 1986 by a policeman on patrol outside a public male toilet of the Tsin Shui Ma Tau Village garden.

2. The appellant was sentenced to detention in a training centre after the learned magistrate called for training centre and detention centre reports. The appeal against sentence is based firstly on the general ground that the learned magistrate had imposed a sentence which was manifestly excessive for this offence, that the magistrate had failed to consider the option of a fine and also that she had relied on the probation officer's report which was also called for in that some of the contents of the probation officer's report were objectionable, subjective and groundless and that the magistrate had also not fully considered the contents of the detention centre and the training centre reports regarding the appellant's background. The appellant has a previous conviction for blackmail in 1985, that is, on the 5th of July 1985 that he was placed on probation for 15 months for that offence. Although the probation officer says that the probation period was satisfactorily closed, nevertheless another report which I called for stated that during the period of that probation, the appellant was not a satisfactory probationer in that he had been dismissed from his job owing to his laziness, he had failed to report to his supervising probation officer on 5 occasions, had changed jobs from one to another frequently without prior consultation with the supervising probation officer and also the appellant had been warned on several occasions from mingling with dubious characters, lingering in video game centres at times, playing mahjong and as a smoker, his smoking habits had become worse than before, that is, he was smoking more heavily.

3. I have no doubt that in making the order for detaining the appellant in a training centre, the learned magistrate was motivated by the best of intentions, that is, to provide some sort of training going towards the reformation of the appellant. But the complaint made here today is that the probation officer's report was made on incomplete information because at the time, that is when the probation officer's report made on the 31st of December 1986, the appellant's parents were not in Hong Kong and therefore the probation officer had not been able to obtain the necessary information from them and that his sister who was the only relative of the appellant then present in Hong Kong and who was interviewed by a probation officer, had no plans regarding his reformation. When this case first came before me, I called for further reports from the probation officer and also from the Drug Addiction Treatment Centre. I think the first reports which ought to have been obtained were those of the probation officer and those of the Drug Addiction Treatment Centre, and it is now quite clear from these reports that the appellant is not a drug dependant. His parents have come before me today and they have given evidence to the effect that the probation officer, that is Mr Yung, had impressed upon them that the training facilities provided by the training centre were of great advantage to the appellant in reforming the appellant. It had been earlier stated on behalf of the appellant that the probation officer had improperly influenced both parents into thinking that the training centre was a sentence which was suitable for the appellant and that they should not appeal this sentence. This morning, the evidence given by the mother was to the effect that the probation officer had provided analogies of possibly similar cases in the past when offenders had been assisted by the training centre programme and, so also so far as the father was concerned, he was given similar analogies concerning the benefits which the appellant would receive from such training. I must confess that when I first heard these allegations made against the probation officer , was expressed as the instructions of the parents that they sounded rather sinister and this is the reason why I called firstly for a further report from the probation officer and a report from the Drug Addiction Treatment Centre and also heard evidence from both the appellant's parents in order to ascertain where the true position lay. Having heard the parents, I do not think there was anything sinister at all nor does the impression which I have gained from their evidence lead me to believe that the parents had been influenced in such a way that they would make the false statements ascribed to them in the probation officer's report. In fact, it appears to me that what the probation officer was saying was that the training facilities provided by the training centre were of advantage to the appellant but apart from all this, I have to take into account the fact that this was an offence for the possession of 10 mandrax tablets, a small quantity of dangerous drugs which are placed in the same category as opium. Having heard his parents this morning, I am assured that they will now take a more serious and strcicter view of the appellant's way of life, his experimentation with this type of dangerous drug at his age. However, to ensure that efforts will be made by the parents towards these ends, I am going to take a course which would directly involve the parents in the reformation of the appellant. Before going into that matter, a training centre order for this type of offence is similar to a custodial sentence of a length of not less than 6 months nor more than 3 years and the normal detention period is about 12 months. It is therefore for this particular offence, a manifestly excessive sentence. As I have said the learned magistrate had the best possible intentions in mind when making the training centre order against the appellant.

4. The appeal against sentence is allowed and substituted for the detention order is an order that the appellant be bound over in the sum of $1,000 for 12 months and to be brought up for sentence whenever called upon, with his father and mother as the two sureties for the same amount. I think this will ensure that the parents see to it that the appellant at least as far as I can now expect, take advantage of the opportunity given to him to change his habits which have been described in the probation officer's reports.