HKSAR v. MAN WAI SHING

HCMA322/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.322 OF 2004

(ON APPEAL FROM ESCC 803 OF 2004)

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JUDGMENT

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1. This is an appeal against sentence only. The appellant, on his own plea, was convicted in Eastern Magistracy on 25 February 2004 of an offence of theft of two packets of skin care products from a Watson's Store in Queen's Road Central contrary to section 9 of the Theft Ordinance, Cap. 210.

2. The appellant was, at the time of his conviction, apparently addicted to heroin. He had a large number of previous convictions for theft and drug related offences. The sentencing magistrate therefore called for a pre-sentence report from the Drug Addiction Treatment Centre ("DATC") Assessment Panel. Two weeks later, on 10 March 2004, when the appellant came back before the court the provided DATC report was favourable.

3. However in the interim period, on 8 March 2004, the appellant had appeared in North Kowloon Magistracy in respect of a separate but similar theft offence and on that day was sentenced to two months' imprisonment.

4. When the present case came back before the magistrate in Eastern Court on 10 March 2004 the magistrate was confronted with the difficult situation of having a favourable DATC report in respect of the appellant who by that time had been sentenced to and had commenced serving a sentence of two months' imprisonment.

5. The situation was unfortunate and should never have arisen. The North Kowloon magistrate should have been informed that the appellant was currently being considered as to his suitability for a DATC order and was not apparently so informed. Why that was I have not been told. But it appears that the two separate police teams dealing with the two separate cases were likely each unaware of the appellant's involvement in the other court proceedings. Obviously also, the appellant did not bring to the attention of the North Kowloon magistrate the fact that he was currently involved in proceedings for a similar offence in Eastern Magistracy.

6. In any event when the matter came back on 10 March 2004 before the magistrate at Eastern Magistracy he adopted the recommendation in the report before him and imposed a DATC order. That meant the appellant was subject to concurrent sentences. One was a sentence of two months' imprisonment, the other was an order that he be detained in a DATC.

7. Mr Lo for the appellant complains that the imposition of a DATC order in those circumstances was wrong in principle. That is his sole ground of appeal.

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.

10. Section 57 of the Magistrates Ordinance, Cap. 227 which performs the same function as section 68 of the Criminal Procedure Ordinance, Cap. 221, is in these terms :

" Where a term of imprisonment is imposed by a magistrate, ... the magistrate may order that the said term shall commence at any time during or at the expiration, ... of any other term of imprisonment which has previously been imposed by any court: ..."

The section allows sentences of imprisonment to be served consecutively. But sentences of imprisonment are not detention orders. Section 57 does not operate to allow an order that a defendant be detained in a DATC be served consecutively to an existing sentence of imprisonment.

11. In the absence of any statutory provision to the contrary a sentence or order of detention made by a magistrate runs from the date it is imposed or made.

12. In R. v. To Ka Shing [1987] HKLR 69, Huggins VP (as he then was) expressed the view that :

"... there was no jurisdiction to direct that the period of detention in the drug addiction treatment centre should run from a future date..."

The judgment in To's case was followed in Lam Mee Fat, HCMA 1104 of 2002 and Lai Cham Chuen, HCMA 1181 of 2003.

13. It seems from the authorities of Tong's case and the judgments in the other cited magistracy appeals that it is wrong that an order for the detention of a person in a DATC be imposed when a defendant is already serving a sentence of imprisonment. The sentences cannot be served concurrently and there is no jurisdiction to make the detention order consecutive to the existing sentence of imprisonment. It may be that such a jurisdiction is desirable and should be brought into being to allow addicted individuals to benefit from rehabilitative treatment even if they are currently serving short sentences of imprisonment for other offences. That is a matter for the legislature.

14. Accordingly, I allow the appeal against sentence and set aside the existing order of detention in a DATC and in lieu thereof impose a sentence of two months' imprisonment. The sentence reflects a starting point of three months' imprisonment and allows for the appellant's plea of guilty. Having considered the totality principle and the separate nature of the offences, I order that sentence to be served wholly consecutively to the sentence the appellant is currently serving. That will arrive at a totality of four months' imprisonment for the two sentences.