HKSAR v. FUNG WAI MAN, MING

HCMA 281/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 281 OF 2004

(ON APPEAL FROM NKCC 1320/2004)

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J U D G M E N T

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1. The Appellant is a man in his late 20s. He faced a charge of possession of dangerous drugs contrary to s. 8(1)(a) and (2) of the Dangerous Drugs Ord., Cap. 134. These drugs consisted of 0.59 gms of a mixture containing 0.43 gms of heroin hydrochloride and 28 tablets containing 0.37 gms of midazolam. He was found in possession of these drugs on 12 January 2004 in a street in Shek Kip Mei. On 20 February 2004 he appeared before H A Mierczak Esq. in the Magistrate's Court at North Kowloon, and pleaded guilty to this charge. He had 19 previous convictions, including eight for possession of dangerous drugs and one for trafficking in dangerous drugs. Indeed he was, at the time when he pleaded guilty to the present charge, serving a prison sentence due to expire on 28 April 2004.

2. What the Magistrate did on 20 February 2004 and why he did it may be taken from this passage in his Reasons for Sentence:

"Because the appellant was already serving a sentence and it was his request to be sentenced to imprisonment with respect to this matter. I thereupon took a starting point of 9 months imprisonment, gave him the one third discount for his guilty plea, and made 4 months consecutive to, and 2 months concurrent with his current sentence making a total head sentence of 9 months. It was subsequently bought to my attention on the 20 February, 2004 that I was in error with respect to such order, as per S. 6A of Drug Addiction Treatment Centre Ordinance, Cap. 244, i.e. the appellant was already serving a sentence of less than 9 months imprisonment i.e. 5 months. Accordingly I reviewed myself pursuant to S. 104(5) of the Magistrate's Ordinance, Cap. 227, vacated my previous order and adjourned the matter for a Drug Addiction Treatment Centre report in compliance with S. 54A of the Dangerous Drugs Ordinance."

3. What the Magistrate did after considering that report is dealt with in the Reasons for Sentence as follows:

"That report was forthcoming on 5 March, 2004, and it had been read over and explained to the appellant. The appellant was considered suitable for admission to such centre. Further mitigation was put which again is in the transcript attached. It mainly dwelled on the fact that the DATC order would not be beneficial to him, and as well his girlfriend was in an advanced state of pregnancy.

At the time of sentencing I agreed with the view taken by the Pre-sentence assessment Panel Officer in the compilation of the DATC report, that taking all of the circumstances into account, a period of compulsory drug addiction treatment coupled with intensive counselling and aftercase supervision would be beneficial to the appellant. Accordingly I sentenced him to such Drug Addiction Treatment Centre."

4. That is the sentence now appealed against. After he passed that sentence but before he prepared his Reasons for Sentence, the Magistrate became aware of certain decisions of this Court which persuaded him that a person who is serving a sentence of imprisonment should not be sentenced to detention in a Drug Addiction Treatment Centre. He acknowledged that in his Reasons for Sentence. And he then concluded his Reasons for Sentence by saying this:

"It might be that in view of all the circumstances here the proper sentence to impose on the appellant would have been an additional term of imprisonment (as I had previously erroneously tried to do on the 20 February, 2004), because after he has served an additional prison term, he may indeed be drug-free, and it would serve no useful purpose to send him back to DATC for treatment. On reflection it would be wrong in principle to impose DATC to be served after his sentence of 5 months which is currently imposed and so an additional term of imprisonment should have been imposed. Nine months would have been an appropriate starting point. With the appellants discount for a plea of guilty, 6 months should have been imposed, and taking totality into account, 4 months should have been consecutive, and 2 months concurrent with his present sentence i.e. a head sentence of 9 months."

5. Counsel for the Appellant submits that the appeal should be allowed to set aside the sentence of detention in a Drug Addiction Treatment Centre and replace it with a sentence of five months' imprisonment wholly concurrent with the five-month prison sentence which the Appellant is presently serving. She seeks to support this submission by citing the decision of Silke J (as he then was) in R v. Yeung Tak Shing [1980] HKC537. The magistrate in that case passed a sentence of detention in a Drug Addiction Treatment Centre which was to start after the appellant in that case had completed an 18-month prison sentence which he was then serving. At p. 538C-E Silke J said :

"As presumably he would be given some medical treatment while in prison, as he could be transferred to the centre under the provisions of s. 8A of the Drug Addiction Treatment Centres Ordinance (Cap. 244), and as presumably he would not have access to drug while he was there, I thought the imposition of a period of detention in the treatment centre starting over a year after that particular sentence was imposed to be wrong in principal.

Accordingly, and without objection from the Crown, I gave leave to appeal against sentence out of time, allowed the appeal insofar as a period of imprisonment for one year was substituted for the Drug Addiction Treatment Centre order. That sentence to run concurrently with the sentence being presently served."

6. Circumstances vary from case to case, and R v. Yeung Tak Shing is not an authority for saying that all sentences of imprisonment passed for possession of dangerous drugs are to be made wholly concurrent with any sentence already being served for possession of dangerous drugs. Silke J contemplated it as a real possibility that the appellant in that case would be transferred to a Drug Addiction Treatment Centre. It is not suggested that there is any real possibility of such a transfer in the present case.

7. In my view, the appropriate sentence is the one which the Magistrate now favours and which the prosecution supports. Accordingly I allow the appeal, set aside the sentence of detention in a Drug Addiction Treatment Centre and replace it with a sentence of six months' imprisonment running four months consecutive to, and two months concurrent with, the five-month prison sentence which the Appellant is presently serving.