LO KAM WAH v. HKSAR

HCMA 209/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 209 OF 2011

(ON APPEAL FROM TMCC 37/2011)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  On 17 February 2011 the appellant pleaded guilty to a charge of possession of eight tablets of a Part 1 Poison, Zopiclone, contrary to ss. 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138. The magistrate adjourned sentencing to 3 March 2011 for a report on the appellant’s suitability to undergo probation. The appellant was granted bail. That report did not recommend such an order. The magistrate then called for a report for his suitability for committal to Drug Addition Treatment Centre and adjourned sentencing to 17 March 2011, remanding the appellant in custody. That report recommended such an order. That is the course the magistrate took because, as he rightly observed, the appellant is drug dependant: that is borne out by his record of criminal convictions.

2.  However, the magistrate was made aware of the fact that the appellant was serving, at the date he made the order, a period of imprisonment. He expressed himself thus:

Ordinarily I would not have imposed a DATC order in respect of an offender who was currently serving a prison sentence. However I was advised in the DATC suitability report that the appellant would be discharged from prison on 23 March 2011 (i.e. six days after I sentenced). The appellant was clearly in the grip of drug addiction. As a young person of 33 years old, I was of the view that rehabilitation was a key consideration in sentencing.

3.  There is established authority that it is wrong in principle to make an order committing an offender to DATC at the time when he is serving a term of imprisonment: see, e.g.,  R v YEUNG Tak Shing [1980] HKC 537;  R v TO Ka Shing [1987] HKLR 69 CA;  R v LAU Chi HCMA1583/1990;  HKSAR v MAN Wai Shing HCMA322/2004;  HKSAR v LEDESMA Jose Rizaldo R [2011] 2 HKLRD 674.

4.  Had this been invited to the magistrate's attention at that time it would have been open to him have adjourned sentencing for a period of seven days and then made the order concerning DATC. As it was, the appeal had to be allowed. The respondent conceded as much. I did so on 5 May 2011.

5.  I was urged to impose a term of imprisonment there and then. I shared the magistrate's the view that, in this matter, "... rehabilitation was a key consideration in sentencing.". Despite the inappropriate reaction and comments of the appellant's counsel, I adjourned the hearing of the appeal to 26 May 2011 for the purpose of the preparation of a further report as to the appellant's suitability for committal to DATC.

6.  When the matter came back before me the Commissioner of Correctional Services in his report expressed the opinion that the appellant remains drug dependent and was considered suitable for admission to DATC despite the fact that a similar order has previously been made.

7.  Once again, I was urged not to make such an order. It was submitted on behalf of the appellant that, as a matter of law, such an order could not be made as only a sentence which competently could have been imposed by the magistrate on the date upon which he sentenced the appellant could be imposed by a court on appeal from the magistrate's sentence. This was the interpretation sought to be placed on the provisions of ss. 119(1)(d) and (e) of the Magistrates Ordinance, Cap 227.

8.  In the circumstances of this matter , I did not regard it as necessary to decide that issue. The fact is that the appellant has been in one or other form of custody, except for a brief period, since 17 February 2011 when he was convicted of this offence. Given the nature of the offence and the type and quantity of substance involved, to have committed him to DATC at this stage would have resulted in an excessive sentence.

9.  I sentenced the appellant to undergo imprisonment for a period of two months which is in accordance with the general level of sentences imposed, on a plea of guilty,  for such quantities and substances .